Petition for Writ of Certiorari — Village of Los Ranchos de Albuquerque v. Stone

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Ci) Supreme Court, U.S. |

yh=1798 | FILED

MAY 5 1992

No.

| OFFICE QF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

VILLAGE OF LOS RANCHOS DE ALBUQUERQUE, et al.,

Petitioners,

JOHN O. MARSH, SECRETARY OF THE

DEPARTMENT OF THE ARMY, et al.,

Respondents.

On Petition For Writ Of

Certiorari To The United States Court Of

Appeals For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

WituiAmM G. WALKER

Counsel of Record for Petitioners

Douctas L. Hayes

WALKER & VAN HEIENOORT

150 Louisiana Blvd. NE

Albuquerque, NM 87108

(505) 268-4551

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

|. WHAT IS THE PROPER STANDARD OF REVIEW OF

AN AGENCY’S EXECUTION OF ITS DUTY UNDER

THE NATIONAL ENVIRONMENTAL POLICY ACT

TO DETERMINE WHETHER A KNOWN IMPACT IS

SIGNIFICANT BEFORE DECIDING NOT TO PRE-

PARE AN ENVIRONMENTAL IMPACT STATEMENT.

PARTIES

VILLAGE OF LOS RANCHOS de ALBUQUERQUE;

ANNE BULLOCK; STEVEN RUFFENACH; EDWARD

BANKS; BILL DERR; R.E. CLARK; ANN CLARK; CON-

RAD STACK; ARNOLD SARGEANT; KIT SARGEANT;

RIO GRANDE VALLEY PRESERVATION SOCIETY,

Petitioners,

JOHN O. MARSH, Secretary of the Department of the

Army; MICHAEL J. DEBOW, Lieutenant Colonel, District

Engineer for the Albuquerque District of the Army Corps

of Engineers; FRANK DUNKLE, Director of the U.S. Fish

and Wildlife Service; MANUEL LUJAN, JR., Secretary of

the Department of the Interior; HENRY J. HATCH, Lieu-

tenant General, Chief of Engineers of the Corps of Engi-

neers; MICHAEL SPEAR, Regional Director of Region 2

(Southwest Region) of the Fish and Wildlife Service; CITY

OF ALBUQUERQUE,

Respondents.

iii

TABLE OF CONTENTS

Page

Sys ee gy yo i

EGE GER Cakes 444850566 aS bev enencees ii

pp ees eo | Vv

es nage Sevan kobe Weds enevesceecs 1

IY Ske buenos kiee sass dvecensosvendac 1

ee 2

CONSTITUTIONAL PROVISIONS, STATUTES, REG-

RPRMREORPUO BIO VOLVEBOY 6. cee ccc cece aneecnas 3

STATEMENT OF THE CASE...................005. 3

I 6 OP As kei s bck i wds ties senesced usscees 9

I. REVIEW SHOULD BE GRANTED BECAUSE

THE CIRCUIT COURTS ARE IN CONFLICT

OVER THE STANDARD OF REVIEW OF AND

DEGREE OF DEFERENCE TO BE GIVEN TO AN

AGENCY ANALYSIS AND DECISION NOT TO

PREPARE AN ENVIRONMENTAL IMPACT

aa LAG G WEL GARR EN S400 40k 4d 4d 06s 9

A. THE BETTER REASONED ANALYSIS

REVIEWS AGENCY CONCLUSIONS ON

THRESHOLD ISSUES DE NOVO.......... 10

B. EFFECTIVE JUDICIAL REVIEW IS DENIED

WHEN LEGAL CONCLUSIONS ARE

TREATED AS FACTUAL DISPUTES AND

GREAT DEFERENCE IS CONFERRED ON

ee eka te kceebbdeetnadencss 13

Il. REVIEW SHOULD BE GRANTED BECAUSE

THE WRONG STANDARD OF REVIEW WAS

APPLIED OR THE CORPS’ DECISION

RECEIVED UNDUE DEFERENCE.............. 17

TABLE OF CONTENTS - Continued

Page

A. THE CORPS IS REQUIRED TO MAKE CER-

TAIN DETERMINATIONS IN ORDER TO

ee eee rrr re 17

B. THE FAILURE OF THE CORPS TO TAKE A

HARD LOOK AT AND DETERMINE THE

LEVEL OF SIGNIFICANCE OF IMPACTS OF

THE HABITAT FRACTURING REQUIRES

VACATING THE § 404 PERMIT AND

REMAND TO THE CORPS FOR AN ADE-

BN Re rrere yore rrr errs 19

CRE 6 6 an eede sce bhchesaccOneeds 6a eaneuek 26

TABLE OF AUTHORITIES

Page

CAsEs:

Anderson v. Liberty Lobby, 477 US 242 (1986)......... 16

Avia Group International, Inc. v. L.A. Gear, 853 F2d

ene rat 16

Baltimore Gas & Electric Co. v. NRDC, Inc., 462 US

OF GAAP 6555 ceo acn bbe chaeee see ae 8

Bd. of Education, Island Trees Union Free School Dist.

No. 26 v. Pico, 457 US 853 (1982) ................. 16

Boles v. Onton Dock, Inc., 659 F2d 74 (6th Cir. 1981) ....14

City of Albuquerque v. State ex rel. Village of Los

Ranchos de Albuquerque, et al., 111 NM 608, 808

P2d 58 (Ct. App. 1991), cert. denied, March 20,

1991 (NM Bar Bulletin, Vol. 30, No. 13, p. 229)..... 2

City of Alexandria v. Federal Highway Administra-

tion, 756 F2d 1014 (4th Cir. 1985)................. 14

Concord Township v. United States, 625 F2d 1068 (3d

Cie FOR cS ue eee 12

Foundation for North American Sheep v. U.S. Dept. of

Agriculture, 681 F2d 1172 (9th Cir. 1982) .......... 20

Fritiofson v, Alexander, 772 F2d 1225 (5th Cir. 1985)

+404 we be ewe eee oe eS ee ee ee ee 12, 13, 24

Gee v. Boyd, 471 US 1058 (1985)................... 9, 17

Goos v. 1.C.C., 911 F2d 1283 (8th Cir. 1990)........... 9

Hanly v. Kleindienst, 471 F2d 823 (2d Cir. 1972),

cert. denied, 412 US 908 (1973) ..................-. 14

Jones v. Gordon, 792 F2d 821 (9th Cir. 1986) ......... 26

Kleppe v. Sierra Club, 427 US 390 (1976) ............. 24

TABLE OF AUTHORITIES - Continued

Page

Marsh v. Oregon Natural Resources Council, 490 US

i errr ry reer rrr 9, 12, 14, 15, 17

Motor Vehicle Manuf. Assoc. v. State Farm Mutual

Ins. Co., GBB UE Be Cae he vv xasic ies veereseueneaes 25

North Buckhead Civic Ass‘n v. Skinner, 903 F2d 1533

(Vith Cie, MWMGlS 6.20 Sie eee 15

Oregon Natural Resources Council v. Marsh, 832 F2d

1489 (9th Cir. 1987), rev'd on ether grounds, 490

US S60 CISRRE ova sc ¥avdveeassane ye eeee ase eiees 13

People ex rel. Van de Kamp v. Marsh, 687 FSupp 495

(ND. Cok WOBRD se ic ca xsscnee ee eee eee 26

River Road Alliance, Inc. v. Corps of Engineers, 475

US 1000 (OGG) ss das iksceeccabheen th ous eheeneuasass> 9

River Road Alliance, Inc. v. Corps of Engineers, 764

F2d 445 (7th Cir. 1985), cert. denied, 475 US 1055

(IDOE)... ccrcuceccecdet eee ee 10, 14

Save Our Ten Acres v. Kreger, 472 F2d 463 (5th Cir.

WGI)... os ss'senenele aback coe een 13

Sierra Club v. Hodel, 848 F2d 1068 (10th Cir. 1988)..... 8

Sierra Club v. Marsh, 769 F2d 868 (1st Cir. 1985). .11, 12

Sierra Club v. Peterson, 717 F2d 1409 (D.C. Cir.

T9GS)..... oi «case caadieeeelewa ee teen enone 10, 11, 12

Sierra Club v. U.S. Forest Service, 843 F2d 1190 (9th

Cie, 1968) ..6ccnidat Sie eee eee 12, 13

State ex rel. Village of Los Ranchos de Albuquerque v.

City of Albuquerque, New Mexico Court of

Appenin, POG. TROrG: sss sccawnncews eee eeeat eal ehaees 2

State of Louisiana v. Lee, 758 F2d 1081 (5th Cir.

1985), cert. denied, 475 US 1044 (1986)............. 15

Vii

TABLE OF AUTHORITIES - Continued

Page

Town of Orangetown v. Gorsuch, 718 F2d 295 (2d

Cir.), cert. denied, 465 US 1099 (1983).............. 14

Township of Lower Alloways Creek v. Public Service

Electric & Gas Co., 687 F2d 732 (3d Cir. 1982)..... 12

United States v. Diebold, 369 US 654 (1962)...... Pere

Van Abbema v. Fornell, 807 F2d 633 (7th Cir. 1986) .... 10

Village of Los Ranchos de Albuquerque v. Barnhart,

906 F2d 1477 (10th Cir. 1990), cert. denied, 111

et SP ee rae ey rey, Peon 2, 15

Winnebago Tribe of Nebraska v. Ray, 621 F2d 269 (8th

Cir.), cert. dented, 449 US 836 (1980)............... 15

CONSTITUTIONS AND STATUTES:

rc I I A eyo e eee kacuhi an eenecioenes 16

Oe es RE ik no kd 60s 4 eae ee 2

ee ess awe kk ee be eb SAS Kee he eae ae 2

Sr RS oo ssw has kee ace eu uakad eet 2

ee ae EG aka os ose ecu n anna e cua es 2

ADMINISTRATIVE Procepures Act (APA)

oii 5s vss oc va sipvnnvncnvs bavevicaccas 4

5 USC § 702...... 00... e cece eee. See ee 2

5 USC § 704...........ceeeceeeeeee era ree 2

Re is ane vcbkoccinicasehsexeiaccdacd 11

Vill

TABLE OF AUTHORITIES - Continued

Page

CLEAN Water Act

ee er rer ee eer ee 3

a Pe re er er re 5, 6

FisH AND WILDLIFE COORDINATION ACT

ee fe fF Ee eer ere er 4,5

NATIONAL ENVIRONMENTAL Po ticy Act (NEPA)

we se Oe 2 rrr eeeere rrr Terre rT Terres 4

a an ee ne err er ere 6

NATIONAL Historic PRESERVATION Act (NHPA)

Rt Me ee SF PTO CET TIT re eer ee Tere er Cee 4

RULES AND REGULATIONS:

cog ee | Aer ere eer rr er rere eer rrr es 6

cd ee reer ere rere ey ere errs 7, 18, 24

ee ee ee I oh eS SSK seek 5 8 eR EN 8

Cee we 8} ee ee rere err rere rere errr 25

ee ee sak oa ee das vein cane aa cssekeen 8

eG GR RPP reer ere rere creer Tre 25

Oe ee eS 6555565 ae os ke as ee eee eee eka ii

te & eer 24

40 CFR § 1506.8........... Lede ee ia eee aan eek ee 25

Ce Bee. ae eee 6, 8

TABLE OF AUTHORITIES - Continued

Page

eee ao hes co eke hoe aaah a ee eeu eeane 5,7

ee Se 0h 6-5 6c bv awk ee de ekeneeaetess 20, 24, 25

OTHER AUTHORITIES:

46 Fed Reg 18026, 18037 (1981) Council on Envi-

ronmental Quality, Forty Most Asked Questions

Concerning CEQ’s NEPA Regulations, 36a &

SE aah a ee kun eee ee ee ee eae es 6

Hoskins, Judicial Review of an Agency’s Decision Not

to Prepare an Environmental Impact Statement, 18

eewen. Di. TOO. Pe CEE dc vc acecsseansesxe 11,

Moore's Federal Practice, (2d ed. 1985)................

The petitioners, Village of Los Ranchos de Albuquer-

que, et al., respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Tenth Circuit.1

OPINIONS BELOW

The Supplemental En Banc Order on Petition for

Rehearing and Suggestion for Rehearing En Banc, App.

la,? is reported at 956 F2d 970 (10th Cir. 1992). The

original Order and Judgment of the court of appeals,

App. 8a, is unreported. See table, 947 F2d 955 (10th Cir.

1991). The decision and memoranda opinions of the dis-

trict court are unreported. App. 19a, 20a, 26a, 30a, 67a,

and 70a.

JURISDICTION

[he Order and Judgment of the United States Court

of Appeals for the Tenth Circuit, affirming the decision of

the trial court, was entered October 24, 1991. App. 8a. The

| The Tenth Circuit Court of Appeals heard this case under

three case numbers. The cases presented identical issues and

the circuit court issued one Opinion for all three case numbers.

* Throughout this Petition, documents found in the

Appendix are cited by page number (e.g. “App. 31a”). The

transcript is cited by page (e.g., “Tr. 50”), and the Administra-

tive Record is cited by volume and page (e.g., “AR Vol. I, p.

25”)

denial of rehearing and supplemental en banc order was

entered February 11, 1992. App. la. Jurisdiction is con-

ferred on this Court by 28 USC § 1254(1) to review the

order and judgment by writ of certiorari to the Tenth

Circuit Court of Appeals.

The jurisdiction of the United States District Court

for the District of New Mexico was invoked pursuant to

28 USC § 1331 (federal question), 28 USC § 1361 (man-

damus), and 5 USC §§ 702, 704 (Administrative Pro-

cedures Act). The jurisdiction of the court of appeals was

invoked pursuant to 28 USC § 1291.

RELATED CASES

Village of Los Ranchos de Albuquerque v. Barnhart, 906

F2d 1477 (10th Cir. 1990), cert. denied, 111 SCt 1017 (1991).

City of Albuquerque v. State ex rel. Village of Los Ranchos

de Albuquerque, 111 NM 608, 808 P2d 58 (Ct. App. 1991),

cert. denied, March 20, 1991 (NM Bar Bulletin, Vol. 30, No.

13, p. 229); State ex rel. Village of Los Ranchos de Albuquer-

que v. City of Albuquerque, New Mexico Court of Appeals,

No. 13570.3

* All development of the project in question (known as the

Montano Project) was halted in May, 1989 by a preliminary

injunction from a state district court. The lawsuit has been

dismissed following a New Mexico Court of Appeals interlocu-

tory decision that a highway project can never be a public

nuisance per se. The injunction remains in effect pending final

appeal.

CONSTITUTIONAL PROVISIONS, STATUTES,

REGULATIONS INVOLVED

PROVISION APPENDIX PAGE

ee 88a

Administrative Procedures Act

9 USC § 701 - 706 (partial)...................... 89a

National Historic Preservation Act

Ne ccc ccc uccnccce 92a

Clean Water Act

EE 93a

National Environmental Policy Act of 1969

42 USC § 4321 - 4332 (partial)................. . 95a

Corps NEPA Implementation Procedures (1991)

cee ccc cece cc cc cccccce 98a

Corps General Regulatory Policies (1991)

33 CFR § 320.4(a) (partial)...............0....... 99a

Corps Permit Processing Regulations (1991)

ccc ccc wc ccc cccccnce. 10la

Corps NEPA Implementation Procedures for the Regula-

tory Program (1991)

2 CFR App. B.7 (partial)....................... 102a

Council on Environmental Quality Regulations (1991)

40 CFR § 1500 et seq. (partial) .................. 103a

STATEMENT OF THE CASE

NATURE OF THE CASE

The City of Albuquerque (City) proposes to build a

roadway and bridge through the Rio Grande bosque* and

* “Bosque” is translated from Spanish as “forest.” The

bosque along the Rio Grande is a rich floodplain and riparian

(Continued on following page)

across the Rio Grande at Montano Road (Montafio Pro-

ject) three miles north of the Interstate 40 (1-40) river

crossing and three miles south of the Paseo del Norte

(Paseo) river crossing. The Montano Project contemplates

a two-lane bridge which will, according to competent

evidence presented in this case: bisect and fracture core

wildlife habitat of a previously unbroken six-mile stretch

of the Rio Grande riparian bosque; directly destroy

approximately four acres of bosque; take, use, and dam-

age portions of the John Simms New Mexico State Cul-

tural Property and Los Poblanos National Historic

District; and impact long-established neighborhoods and

communities adjacent to the roadway and bridge.

Petitioners, a New Mexico municipality, an environ-

mental public interest group, and individuals who use

the bosque and historic sites at the project location (here-

inafter collectively the Village), brought suit for declara-

tory and injunctive relief under the Clean Water Act, 33

USC § 1251 et seq., the National Environmental Policy Act

(NEPA), 42>USC § 4321 et seq., the National Historic

Preservation Act (NHPA), 26 USC § 470 et seq., the

Administrative Procedures Act (APA), 5 USC § 701 et Seq.,

and the Fish and Wildlife Coordination Act, 16 USC § 661

et seq. The suit challenged the adequacy and accuracy of

the environmental and public interest reviews conducted

(Continued from previous page)

forest which supports abundant wildlife. While accounting for

less than one-tenth of one percent of wildlife habitat in the

southwest, riparian habitat such as the Rio Grande bosque is

obligate to 60 to 70 percent of southwestern wildlife. AR Vol.

VIII, at 89.

by the U.S. Army Corps of Engineers (Corps), the Fish

and Wildlife Service (FWS), and the City in relation to a

dredge and fill permit issued pursuant to § 404 of the

Clean Water Act, 33 USC § 1344. It specifically challenged

the bases of the Corps’ Finding of No Significant Impact

(FONSI), 40 CFR § 1508.13, the failure to prepare an

Environmental Impact Statement (EIS) under NEPA, the

failure to independently verify data and analyses, and the

issuance of a dredge and fill permit pursuant to § 404.

The Village also challenged the FWS recommendations

regarding mitigation under the Fish and Wildlife Coor-

dination Act. 16 USC § 661 et seq. The City was dismissed

from the suit May 8, 1989 and is no longer a party. App.

70a.

HISTORY OF THE PROJECT AND CASE

(he Rio Grande and its appurtenant bosque runs

north to south along the west side of the City of Albu-

querque and the Village of Los Ranchos de Albuquerque,

which adjoins the City along its northern boundary near

the river. In 1979 there were two bridges comprising eight

lanes (six at 1-40 and two lanes at Alameda eight miles to

the north) crossing the river in the northern part of the

City. At that time, the City, State of New Mexico, Ber-

nalillo County, and Federal Highway Administration

(FHWA) determined that six new river crossing lanes

were needed in this area in addition to the eight existing

lanes. In 1983 the decision was made to build a two-lane

bridge at Montafio Road and a four-lane bridge farther

north at Paseo del Norte Road. Both bridges would cut

through the Village

The Village then brought suit challenging the FHWA

EIS, and in settlement, the State, County and FHWA

agreed to convert the Paseo Project from four to six lanes

and not to build or contribute funds to the Montano

project. The City decided to build Montafo on its own

and applied for a § 404 permit from the Corps in April,

1986. The Corps prepared an Environmental Assessment

(EA)> in June, 1987.

Neither the FHWA EIS prepared in 1983, nor any of

the studies utilized in 1979, contemplated the six lanes

now open at Paseo. Similarly, the Corps’ EA fails to

consider the effect of recent projects adding four more

lanes at 1-40 (for a total of ten, currently under construc-

tion) and two more lanes at Alameda (for a total of four,

currently under construction). During the public process

for the § 404 permit, the Village, scientists, experts and

others repeatedly warned the Corps that the FHWA EIS

was inadequate because of its failure to study fracturing

of wildlife habitat, impacts to historic properties, noise

impacts, and secondary and cumulative impacts. Despite

strong urging from the Corps’ contract expert on wildlife

and the FWS that the study of fracturing and wetlands

was inadequate or erroneous, the Corps refused to pre-

pare an EIS and instead issued the permit on July 6, 1987,

> An EA is a document agencies use to support the deci-

sion whether to prepare an EIS. That is, the EA helps the

agency determine whether the impacts “significantly affec{t]

the quality of the human environment.” 42 USC § 4332(2)(C).

An EA is less rigorous than an EIS. See 40 CFR § 1508.9,

1508.27; 33 CFR § 230.10; 46 Fed Reg 18026, 18037 (1981),

Council on Environmental Quality, Forty Most Asked Ques-

tions Concerning CEQ’s NEPA Regulations, 36a & 36b.

supported by an EA, Public Interest Determination, 33

CFR § 320.4, and FONSI, 40 CFR § 1508.13. AR Vol. I-A,

I-B.

The Village then filed this suit, including a motion

for preliminary injunction. The Corps filed the Adminis-

trative Record (AR) on March 30, 1989. On May 8, 1989,

the district court issued a protective order sharply limit-

ing discovery and presentation of new evidence, and

setting a “very limited evidentiary hearing in conjunction

with the preliminary injunction hearing,” to determine

whether additional evidence on the issue of fracturing the

bosque would be appropriate. App. 68a (emphasis in

original). The court denied motions to reconsider the

protective order on May 11, 1989, and May 16, 1989. App.

29a.

At the hearing, the court permitted evidence only on

narrow elements of the issue of fracturing of habitat.

Evidence of, e.g., noise impacts on fracturing and historic

properties was excluded. Tr. 329-30, 493 (App. 27a-29a).

The court denied the motion for a preliminary injunction

on May 26, 1989. App. 30a. The respondents filed a

motion for summary judgment. The Village filed a

response and its own motion for summary judgment

supported by transcripts, affidavits, and depositions. The

court entered summary judgment in favor of respondents

on November 30, 1989. App. 20a.

On February 28, 1990, the district court entered final

judgment granting relief to the respondents and denying

all relief to the Village. App. 19a. All petitioners filed

timely notices of appeal against all respondents in the

Tenth Circuit Court of Appeals.¢ After briefing and oral

argument, the court of appeals affirmed in an

unpublished Order and Judgment on October 24, 1991.

App. 8a. The Village timely filed a petition for rehearing

with a suggestion for rehearing en banc on December 9,

1991. On February 11, 1992, the court of appeals denied

the petition for rehearing and issued a supplemental

opinion en banc. App. la.

In the decision below the court changed the standard

of review of agency action in the Tenth Circuit and speci-

fically reversed all the major NEPA decisions in the cir-

cuit since 1973. App. 6a. The overruled standard “on the

threshold NEPA issues of major federal action and signif-

icant impact” evaluated the “legal conclusion” whether

an agency’s action was “reasonable in the light of the

mandatory requirements and high standards of [NEPA].”

Sierra Club v. Hodel, 848 F2d 1068, 1088-89 ‘10th Cir. 1988)

(citing Baltimore Gas & Electric Co. v. NRDC, -nc., 462 US

87, 97-98 (1983) for the mandatory requirement of “hard

° The Village presented detailed new analyses by Dr.

Robert McNeill (vibration impacts to historic properties), Dr.

George Wilson, Wilson Ihrig & Associates (noise impacts to

bosque and nature center), Dr. Robert Ohmart (fracturing

impacts), and Dr. William Siembieda (transportation need and

alternative studies), to the Corps District Engineer on July 23,

1991, with a request for a reevaluation of the circumstances

and conditions of the permit pursuant to 33 CFR § 325.7. See 40

CFR § 1502.9. The District Engineer refused to reevaluate the

permit on December 12, 1991. The Village then submitted a

Freedom of Information Act request to the Corps asking for all

documentation relating to the Corps’ decision not to reevaluate

the permit. The December 19, 1991 response to the request

Stated that no such documents exist.

look” and “adequate consideration” of “every significant

impact”). Decisions such as significance or hard look

were viewed as legal conclusions and reviewed de novo.

When using the new standard of review the court treats

all analysis and decisions or conclusions by the agency,

such as whether an impact is significant, whether alterna-

tives are adequately studied or whether a hard look is

taken, as exclusively factual questions and does not

engage in a de novo review of these legal conclusions. The

court then applies a “highly deferential” review to these

issues. 956 F2d 970, App. 6a, citing Goos v. I.C.C., 911 F2d

1283, 1292 (8th Cir. 1990). See also, App. 11a-13a.

ARGUMENT

I. REVIEW SHOULD BE GRANTED BECAUSE THE

CIRCUIT COURTS ARE IN CONFLICT OVER THE

STANDARD OF REVIEW OF AND DEGREE OF

DEFERENCE TO BE GIVEN TO AN AGENCY

ANALYSIS AND DECISION NOT TO PREPARE AN

ENVIRONMENTAL IMPACT STATEMENT.

The proper standard of review of a decision not to

prepare an EIS is a source of long-standing division

between the circuit courts of appeal.” That split was

7 On at least two different occasions this Court has

declined review of this issue. River Road Alliance, Inc. v Corps of

Engineers, 475 US 1055 (1986) (White, J., dissenting); Gee v

Boyd, 471 US 1058, 1060 (1985) (White, Brennan, Marshall, J.J.,

dissenting) (dissenters: the difference is “not merely semantic

or academic” but is significant and justifies review).

recognized but not resolved by the decision of this Court

in Marsh v. Oregon Natural Resources Council, 490 US 360,

375-78 & n.23 (1989). Because of the different meth-

odologies being applied, different results in similar fact

patterns are occurring.® This petition presents a clean

Opportunity for the resolution of a troublesome diver-

gence in applicable law.

A. THE BETTER REASONED ANALYSIS

REVIEWS AGENCY CONCLUSIONS ON

THRESHOLD ISSUES DE NOVO.

Some courts and federal agencies have labelled the

differing standards of review as “reasonableness”

(reflecting a de novo review of legal conclusions; searching

and substantial review) versus “arbitrary and capricious”

(a highly deferential review of factual determinations of

the agency). The better-reasoned cases invariably give

deference to agency expertise when it is due but search

for well-reasoned analysis and decisions that conform to

* Compare, e.g., the case at bar with Sierra Club v. Peterson,

717 F2d 1409 (D.C. Cir. 1983), in which the facts are very

similar but the results are different. This can occur even within

the same circuit. Compare, Van Abbema v. Fornell, 807 F2d 633,

642 (7th Cir. 1986) with River Road Alliance, Inc. v. Corps of

Engineers, 764 F2d 445 (7th Cir. 1985), cert. denied, 475 US 1055

(1986). Ostensibly applying the same standard, two different

panels of the same circuit evaluated Corps’ permits for differ-

ent barge loading facilities but employed sharply divergent

processes to accomplish opposite results. In River Road, 764 F2d

at 454, the dissent by Wood, J., sharply criticized the majority’s

award of unbridled discretion to the Corps. In Van Abbema the

court found factual ambiguities and did not give discretion to

the Corps to resolve them.

the letter and spirit of NEPA. It is this balanced, logical

standard that this Court should adopt.®

The duty to prepare an EIS is mandatory whenever “any

‘significant’ environmental impacts might result from the

proposed agency action. . . . ” Peterson, 717 F2d at 1415

(applying four part arbitrary or capricious test); 42 USC

§ 4332(C)(2). Every circuit has labored in its attempt to

determine the applicable standard of review, the criteria

within the standard, and the means to ensure compliance

without substituting its judgment for that of the agency. !°

” See Hoskins, Judicial Review of an Agency's Decision Not to

Prepare an Environmental Impact Statement, 18 Envtl. L. Rep. 10331

(1988). In a detailed analysis of the circuits’ positions, the Assistant

to the General Counsel, Department of the Army, argues per-

suasively that a more searching standard than that applied by the

highly deferential courts is required to enforce the environmental

scheme of NEPA. In urging adoption by this Court of the rea-

sonableness review he notes that the continuing, confusion caused

by the different standards is significantly interfering with agency

decision-making. Id. at 10347.

"© An excellent analysis of this “awkward legal animal” is

found in Sierra Club v. Marsh, 769 F2d 868, 870-72 (1st Cir. 1985) in

which the court finds that the APA review standards were

intended to be applied by the district court to a record created

before it rather than in the agency. Confusion has followed the

substantial change in practice that has occurred since the APA was

drafted. The review standards derive from the APA, 5 USC

§ 706(2), which maintains that a reviewing court shall:

oe - 7

(2) hold unlawful and set aside agency action, find-

ings, and conclusions found to be -

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; .. .

* * *

(D) without observance of procedures required by

Historically, the majority of circuits reviewing a decision

not to prepare an EIS have focused on the mandatory

duty under NEPA to identify significant impacts and

have subjected “these threshold determinations to the

higher scrutiny on review.” Township of Lower Alloways

Creek v. Public Service Electric & Gas Co., 687 F2d 732, 742

(3d Cir. 1982) (quoting, Concord Township v. United States,

625 F2d 1068, 1073-74 (3d Cir. 1980).

The District of Columbia, First, Third, Fifth and

Ninth Circuits (and, until Marsh v. Oregon Natural

Resources Council, supra, the Eighth, Tenth and Eleventh

Circuits as well), basically view the agency analysis and

decision whether to prepare an EIS as entitled to less

deference than is given to the EIS Or supplemental EIS

Process. To reach a decision, the court reviews the EA and

AR, takes evidence at trial, reviews opponent’s expert’s

analysis and conclusions, and then searches carefully for

any impact that “may,” Fritiofson v. Alexander, 772 F2d

1225, 1237-38 (5th Cir. 1985), “could,” Sierra Club v, Marsh,

769 F2d at 870-72; or “might,” Peterson, 717 F2d at 1415,

result in a significant impact. If a possible significant

impact is found, the court then looks for convincing

evidence that the impact can be mitigated to insignifi-

cance or that the agency retains authority to preclude or

prohibit the activity or withdraw a permit at a later date.

If “the agency’s review was flawed in such a manner that

it cannot yet be said whether the project may have a

significant impact,” Fritiofson, 772 F2d at 1237-38, or the

agency's action is irretrievable and a possibility remains

that the impact will be significant, the court must remand

to the agency for specific study or, in the Fifth Circuit, for

EIS preparation. Peterson, 717 F2d at 1415; Sierra Club v.

Marsh, 769 F2d at 870-72: Lower Alloways Creek, 687 F2d at

742; Fritiofson, 772 F2d at 1237-38; Sierra Club v. U.S. Forest

Service, 843 F2d 1190, 1192-95 (9th Cir. 1988).1!

The object of this standard is to insure that agencies

do not take uninformed major federal action. If an agency

fails or refuses to make a determination on the signifi-

cance of a known impact, or to identify an impact that

may be significant, or to adequately study an impact,

then a generous grant of deference will permit decisions

without sufficient information or analysis. In that event

“[t]he spirit of the Act would die aborning .. . [because

the agency’s actions] were too well shielded from impar-

tial review.” Save Our Ten Acres v. Kreger, 472 F2d 463, 466

(5th Cir. 1973).

B. EFFECTIVE JUDICIAL REVIEW IS DENIED

WHEN LEGAL CONCLUSIONS ARE

TREATED AS FACTUAL DISPUTES AND

GREAT DEFERENCE IS CONFERRED ON THE

AGENCY.

In contrast, five circuits review the agency decision

not to prepare an EIS utilizing a standard that is highly

deferential to agency expertise. This standard gives the

agency great discretion in deciding its jurisdiction, its

selection of possible impacts to review, the extent and

thoroughness of that review, and the ultimate conclusion

on impacts. At the most extreme, wholesale deference is

given to the agency’s view of facts, alternatives, need and

't See also, Oregon Natural Resources Council v. Marsh, 832

F2d 1489, 1494 (9th Cir. 1987), rev'd on other grounds, 490 US 360

(1989) (cumulative impacts evaluation in EIS reviewed for

reasonableness, issue not appealed to this Court).

public interest. App. la, 8a. See City of Alexandria v. Fed-

eral Highway Administration, 756 F2d 1014, 1020-21 & n.6

(4th Cir. 1985); River Road, 764 F2d at 449 (see dissent,

Wood, J., 764 F2d at 454-58) (court applied the broadest

deference); 33 CFR § 320.4.!2

Three circuits have rejected and overruled a long-

standing standard of review based solely on this Court's

decision in Marsh v. Oregon Natural Resources Council, 490

US at 375-77 & n. 23. That decision applied a deferential

standard because of the “classic . . . factual dispute”

involving a “high level of technical expertise.” Id. at

376-77. Although the decision was specifically limited to

the “narrow question before [the Court] whether” the

Corps needed to supplement an already supplemented

EIS, id. at 375-76, these circuits have read it extremely

broadly to state that the review standard “gives an appel-

late court the least latitude in finding grounds for

12 Two circuits are less clear in the standard applied. The

Second Circuit uses a two-part test which includes deference to

the agency in areas of its particular expertise but requires

reasoned justification otherwise and permits extensive extra-

record evidentiary development. Town of Orangetown v. Gor-

such, 718 F2d 29, 34-35 (2d Cir.), cert. denied, 465 US 1099 (1983)

(citing with approval, Hanly v. Kleindienst, 471 F2d 823, 829-30

(2d Cir. 1972), cert. denied, 412 US 908 (1973)). The Hanly court

set out a two-part test in which it held that the meaning of

“significantly” was a legal question for de movo review. It

generally deferred to the agency but required it to determine

“the absolute quantitative adverse environmental effects of the

action itself, including the cumulative harm. ...” Id. at 830-31.

See also, Boles v. Onton Dock, Inc., 659 F2d 74 (6th Cir. 1981)

(applied arbitrary or capricious standard but minimized differ-

ence between standards and substantially deferred to agency

evaluations).

reversal” and that this highest possible level of deference

to the agency applies at nearly all stages of NEPA review.

North Buckhead Civic Ass'n v. Skinner, 903 F2d 1533,

1538-39 (11th Cir. 1990); Goos, 911 F2d at 1291-92 (NEPA

reviews are factual disputes except for agency decision

on “major federal action,” reaffirming Winnebago Tribe of

Nebraska v. Ray, 621 F2d 269, 271 (8th Cir.), cert. denied,

449 US 836 (1980)); Village of Los Ranchos v. Marsh, 956 F2d

$70 (10th Cir. 1992), App. 1a (significance of NEPA-based

actions is factual; overruled seven prior decisions as

“inconsistent with Marsh”).

The better reasoned cases, however, all recognize that

different levels of deference should apply at different

stages of NEPA and that “significant” and “hard look”

are legal conclusions in the context of whether to prepare

an EIS. When reviewing an EA, the court should neces-

sarily give less deference to the agency than when

reviewing an EIS. An EA is by its very nature more

speculative and should be subject to more searching

review. See State of Louisiana v. Lee, 758 F2d 1081, 1084 (Sth

Cir. 1985), cert. denied, 475 US 1044 (1986); Hoskins, supra,

at 10347.

Applying a high level of deference to agency analysis

and conclusions in a summary judgment review exacer-

bates the problem. In entering summary judgment for

respondents, the district court gave great deference to the

Corps’ analysis and decision that although it could not

determine whether habitat fracturing was a significant

impact without study, it did not need such a study

because it had hopefully guessed right about how to

mitigate the unknown impacts. See App. 12a and 24a.

This deference effectively ratified the Corps’ refusal to

investigate the repeated warnings from a consensus of

experts that fracturing is significant generally, would be

devastating in this unusually rich and fragile area, and

that the FHWA and Corps had not adequately studied the

impact. Summary judgment employing the court’s new

standard of review and resolving factual conflicts in favor

of the movant conflicts with United States v. Diebold, 369

US 654, 655 (1962) and Anderson v. Liberty Lobby, 477 US

242, 249 (1986). Its use precluded a meaningful review of

petitioners’ claims and thus violated their right to due

Process. U.S. Const. amend. V.13

This conflict has raged in the circuits almost the

entire life of NEPA and is devolving into a chaotic rear-

rangement of review standards and overruling of appar-

ently settled law. This petition presents the Court with an

'S The normally strong safeguards to protect the non-

movant in summary judgment disappear in the highly deferen-

tial standard of review employed below. For example, nor-

mally, the burden of clearly establishing the lack of any triable

issue of fact is on the moving party. Moore’s Federal Practice,

{ 56.15[3]. The non-movant’s version of facts must be accepted

and all disputed matters must be resolved in his favor. Diebold,

369 US at 655. Discretion plays no part in granting summary

judgment. Moore’s Federal Practice [] 56.15[1], [3] & [6]; 56.27.

See Avia Group International, Inc. v. L.A. Gear, 853 F2d 1557,

1560-61 (Fed. Cir. 1988). Discovery, severely limited here, is

particularly helpful when obtaining factual data as a basis in

Opposing motions for summary judgment. Moore's Federal Prac-

tice, TF 26.02[4], 56.11. Moreover, summary judgment is espe-

cially inappropriate when the case involves important and

comptex-public issues. See Bd. of Education, Island Trees Union

Free School Dist. No. 26 v. Pico, 457 US 853 (1982).

opportunity to end the “disarray” in the circuits. See, Gee,

471 US at 1060 (White, J., dissenting).

Il. REVIEW SHOULD BE GRANTED BECAUSE THE

WRONG STANDARD OF REVIEW WAS APPLIED

OR THE CORPS’ DECISION RECEIVED UNDUE

DEFERENCE.

The courts that have ruled in the case at bar read

Marsh as dictating a highly deferential standard of review

at all stages of NEPA review. App. 12a; App. 36a. The

Corps’ methodology and conclusory analysis is adopted

without a searching inquiry into the validity of the under-

lying information and without giving the Village a mean-

ingful opportunity to demonstrate the Corps’ error.

Inaccuracy, staleness, avoidance of mandatory decision-

making, and lack of information vital to a significant

impacts analysis were ignored in the rush to deference.

A. THE CORPS IS REQUIRED TO MAKE CER-

TiN DETERMINATIONS IN ORDER TO

COMPLY WITH NEPA.

An agency fails in its mandatory duties under NEPA

when it: 1) refuses or fails to study a potentially signifi-

cant impact; 2) inadequately studies a potential impact; 3)

uses or adopts inapplicable or implausible analyses from

another agency or the proponent; or 4) refuses to make a

decision on significance of an impact. The Village’s ability

to show these failures was unfairly limited both by the

restrictions on discovery and presentation of evidence

and by the degree of deference given to the Corps.

In this case the Corps failed to meet its obligations

under NEPA. The Village is prepared at full briefing to

demonstrate that:

1) the EA and AR failed to satisfy the mandatory

duty to determine the level of significance of “fractur-

ing” 14 of the core wildlife habitat at Montano, see discus-

sion at II.B. below;

2) the Corps’ and courts’ conclusion that, on bal-

ance, the City’s desire for the project outweighs the

unknown significance, relates only to the Clean Water

Act’s public interest analysis, see 33 CFR § 320.4, and is an

inadequate resolution of NEPA’s mandate to determine

significance of impacts;

3) that at trial it can establish that the failure to

identify that the historic buildings immediately adjacent

to the construction site were made of unreinforced tile

and adobe and that vibration from construction would

imperil them violated NEPA and NHPA strictures;

4) that at trial it can establish that the refusal to

reconsider the earlier conclusion on the historic proper-

ties after the State Historic Preservation Officer invoked

the reconsideration process and the Corps was presented

with an unrefuted study that the buildings were immi-

nently endangered violates NEPA and NHPA;

5) the Corps’ adoption of the 1983 FHWA EIS noise

study and other data as adequate was arbitrary and

unreasonable;

’

14 “Fracturing” means to divide a habitat into smaller and

smaller areas, thereby destroying its value as wildlife habitat.

6) that the rejected affidavit of Dr. Wilson, which

details by a site specific, ambient noise study that the

change in noise levels in the bosque, historic district and

surrounding neighborhoods, would be significant under

official FHWA guidelines, is sufficient basis for rejecting

the EA conclusion or requiring supplementary study; and

7) that at trial it can establish that the supplemen-

tary studies by Dr. Wilson and Dr. Ohmart provide irrefu-

table evidence that numerous neotropical migrant bird

species in the adjacent wildlife habitat and refuge will be

irreparably and very possibly significantly impacted by

the increase in noise levels in the area.

B. THE FAILURE OF THE CORPS TO TAKE A

HARD LOOK AT AND DETERMINE THE

LEVEL OF SIGNIFICANCE OF IMPACTS OF

THE HABITAT FRACTURING REQUIRES

VACATING THE § 404 PERMIT AND

REMAND TO THE CORPS FOR AN ADE-

QUATE ANALYSIS.

Fracturing of the riparian wildlife habitat is one good

example of the Corps’ failure to take a hard look at

potentially significant impacts. The Corps was aware that

a potentially significant impact existed; failed to do a

study of its own; refused to listen to experts at its dis-

posal; adopted absurd and irrelevant data; and failed to

make a determination of the level of significance.

The project will fracture an unbroken six-mile linear

stretch of bosque. Every expert biologist that reviewed or

commented on the Corps’ analysis warned the Corps that

the impacts were likely to be significant and there is not

enough data to currently evaluate the impact of fractur-

ing the bosque at Montafio.'5 The Corps was on fair

notice that experts were vitally concerned about the prob-

able fracturing impacts to the bosque and the lack of data

to make conclusions about those impacts. This is not a

conflict of experts over the significance of impact; rather,

there is a consensus among experts warning that not

enough data exists to make a determination on the signif-

icance of an issue that all agree is important and requir-

ing of study before granting a permit. See Foundation for

North American Sheep v. U.S. Dept. of Agriculture, 681 F2d

1172, 1182 (9th Cir. 1982) (controversy, as stated in CEQ

definition of significant, 40 CFR § 1508.27(b)(4), is espe-

cially important factor when every expert questions the

agency action). |

* AR Vol. VII, at 1128 (letter from Dr. Ohmart, the Corps’

contract biologist, warning that there is no adequate analysis

of fracturing); AR Vol. VII, at 1125, (letter from Dr. Cully, now

of FWS, citing lack of scientific analysis of the site and warning

that “fragmentation of habitat patches results in the loss of

plant and animal species”); AR Vol. III, at 197 (letter from FWS

warning “completion of the bridge will also destroy the integ-

rity of a large tract of riparian forest, thus making the area less

valuable to wildlife”); AR Vol. VIII, at 143 (Prof. Findley,

Director, Museum of Southwestern Biology, warning that Mon-

tafio Project could be the final devastating fracture which will

destroy habitat value of bosque); AR Vol. VIII, at 146 (Prof.

Martin, University of New Mexico Biology Dept., warning that

impacts from bridge will extend far beyond bridge site); and

AR Vol. VIII, at 133-36 (Dr. Haffner, Chairman, Science Dept.,

New Mexico Museum of Natural History, warning that this is

one of the more pristine sections of the narrow linear band of

bosque and that there has been no study of the impacts on the

wildlife at that site).

—EE—E————————————E———————E—————————— Ee S_-

The Corps, rather than properly studying the fractur-

ing impacts, misused a two-year intensive biological sur-

vey of the bosque it had commissioned in 1984 (the “Hink

& Ohmart Study,” AR Vol. XIII).16 The EA and AR are

replete with references to the study as justification for the

Corps’ analysis. When Dr. Ohmart, Professor of Biology

at Arizona State University, became aware of the attempt

to use the study for the Montajfio site, he repeatedly

warned the Corps that an analysis of data from this site

had not been done and a full study was necessary to

determine significance.'7 At the preliminary injunction

hearing, when the court allowed some evidence beyond

the AR on fracturing impacts, petitioners called Dr.

Ohmart to testify. He testified extensively on the Corps’

lack of scientific data to support conclusions about the

Significance of fracturing impacts, and what a proper

study would entail. Tr. 201-06, 213-15, 222-23, 275-80,

283-89. He was also particularly chagrined by the Corps’

misuse of his survey and strongly objected to its use to

validate the Corps’ fracturing analysis. Tr. 202-03.

'e The Hink & Ohmart study was completed in June 1984.

It investigated the broad wildlife values of the bosque and the

impacts of improving 60 miles of Corps levees along the Rio

Grande. The levees run parallel to the river and therefore

present a substantially different impact than a crossing which

cuts laterally across the river. Tr. 202-03.

7 AR Vol. II, at 76 (Hink & Ohmart study warns to avoid

fracturing); AR Vol. VII, at 1128-34 (bridge can shatter gene

pool, certain birds’ habitat will be endangered); AR Vol. X, at

74-78, 248-71 (ecological information relied on in FHWA EIS

and by City is out of date); AR Vol. VIII, at 87-94.

This is not a factual dispute between experts, the

resolution of which implicates substantial agency exper-

tise. Rather, Dr. Ohmart is the only expert biologist the

Corps relied upon to support its conclusions. The pri-

mary information collector for the Corps was Ms. Man-

ger, a Corps biologist, who prepared the EA and AR, and

made the FONSI recommendation to the District Engi-

neer. Tr. 92-93. Her recommendations on impact signifi-

cance and mitigation became, by default, the primary

“studies” done by the Corps. Tr. 93. Her educational

background, which includes a B.S. in elementary educa-

tion, an M.S. in teaching science with concentration in

biology and approximately seven biology courses, Tr. 94,

does not qualify her as an expert on habitat fracturing or

its impacts in any sense. She admitted that she has “mini-

mal” knowledge of the biological concept of habitat frac-

turing, and no expertise in the subject. Tr. 98-99.

Moreover, the proponent City provided no greater exper-

tise to the Corps to support its application. Its environ-

mentalist, Mr. Dan Warren, has only a bachelor’s degree

in Biology. Tr. 51. Nevertheless, despite all indications

that there was insufficient data to gauge the fracturing

impact at all, and certainly not enough data to reach a

conclusion that the impact would be insignificant, the

deference shown to her analysis effectively precluded

searching review.

In the EA the Corps admits that the bridge will

fracture the bosque into several small ecosystems ranging

from 140 acres to 360 acres and that areas of 500 to 1000

acres are considered “extremely small for purposes of

ecosystem integrity.” AR Vol. I-B, at 25 (EA). Inexplicably,

because there is no data to support it in the AR or from

any of the experts, the Corps concludes that the impact is

“minor,” and then, absurdly, that the impact should be

mitigated “due to its scarcity in the region and its ecolog-

ical value.” AR Vol. I-B, at 11 (EA). This casual and

contradictory analysis of impacts when a resource as

important as the bosque habitat is at stake is unconscion-

able.

The Corps relies heavily on assumed benefits of

planned mitigation to allay the significance of the fractur-

ing impacts. AR Vol. I-B, at 25 (EA). The value of this

mitigation is completely speculative. Ms. Manger, the

progenitor of the mitigation plans, admits that while she

is qualified to collect expert opinions on the value of

mitigation, she is not an expert in the area herself. Tr. 105.

She relied upon the FWS mitigation recommendations

(purchase four acres of wild area, protect downstream

wetland, prevent vehicular access, and prepare manage-

ment plan), Tr. 105, but states that the FWS did not

address mitigation for fracturing. Tr. 107-11. Yet, without

expertise or expert advice in the area she produced a

mitigation scheme that relied on brush piles under the

bridge to address fracturing impacts. The Corps can cite

no scientific evidence to support the effectiveness of this

mitigation, and claims there is no “need [for] scientific

evidence,” yet uses it to support a finding of no signifi-

cant impact. Tr. 112-13. Dr. Ohmart seriously questioned

whether the outlined mitigation plans would be of any

benefit, and knew of no evidence to support brush piles

as effective mitigation. Tr. 209-20, 239-40.

Not only did the Corps fail to properly study the

impacts of the Montafio Project as an isolated incident,

they also failed to study the cumulative impacts of the

Project with other past, present, and reasonably foresee-

able actions. The Montafio Project would be only one of

several fractures of the bosque in recent years. To scien-

tifically gauge its impacts, the Corps must consider its

impact both individually and cumulatively with other

fractures. The CEQ regulations require this analysis in the

NEPA threshold decision whether to prepare an EIS. 40

CFR § 1508.7, 1508.27(b)(7). See Kleppe v. Sierra Club, 427

US 390, 410 (1976); Fritiofson, 772 F2d at 1242-43.

The Corps, rather than directly and separately

addressing the significance of the impacts and the public

need analysis, inexplicably balances “impact” against

“need.” While appropriate in a public interest analysis,

see 33 CFR § 320.4, this is incomprehensible in a signifi-

cant impact analysis:

In summary, the rating of cumulative

impact of the ‘fracturing’ of the Rio Grande

riparian bosque is difficult if not presently

impossible to evaluate in the spectrum of insig-

nificant to extremely significant impacts of total

urban development and expansion. However,

the present proposed action positively addresses

several critical overall public interest needs

which at this time cannot be reasonably fore-

gone to eliminate only the bridge building seg-

ment of cumulative impact to the overall natural

resource.

AR Vol. I-B, at 27 (EA). These simple assertions of insig-

nificant impact do not even attempt to present some kind

of reasoned analysis. Conclusory statements are com-

pletely contrary to the required analysis of significant

impacts. The CEQ regulations anticipated this type of

rationalization by stating that an impact may be signifi-

cant even if on balance the agency feels the project is

beneficial. 40 CFR § 1508.27(b)(1).

This is a unique and precious natural resource, which

“exceeds or equals the best wildlife habitat in North

America.” Tr. 216. The complete lack of credible study of

the fracturing impacts to the bosque is perhaps the most

serious and the most telling example of the lack of hard

look by the Corps at the Montafio bosque. The Corps did

not take a hard look at this and other impacts, it failed to

consider important aspects of the problem, it offered

explanations counter to the evidence, and its analysis is

so implausible that it cannot be ascribed to a difference of

view or the product of agency expertise. See Motor Vehicle

Manuf. Assoc. v. State Farm Mutual Ins. Co., 463 US 29,

42-44 (1983); 40 CFR § 1508.27(b)(1), (3), (4), (5).18 It is this

illegal review and decision that this Court can set right by

granting this petition. More broadly, by reversing the

decision below this Court can make clear that an agency

' ignores overwhelming scientific opinion at its peril and

that reviewing courts must take great care to assure that

the mandatory duty to evaluate possible significant

impacts is not lost amid the desire to build even the best-

intentioned of projects.

18 If this Court grants certiorari, the Village will also show

how the Corps’ study of wetlands, alternatives, see 33 CFR

App. B.7, 40 CFR § 1502.14, historic properties impacts, and

secondary and cumulative impacts, see 40 CFR § 1508.3 &

1508.8, were unreasoned, not supported by credible study,

arbitrary, and capricious.

Subjects delegated to agency discretion are only

exempt from judicial review when the agency’s judgment

is “fully informed and well-considered.” See e.g., People ex

rel. Van de Kamp v. Marsh, 687 FSupp 495, 498 (N.D. Cal.

1988); Jones v. Gordon, 792 F2d 821, 828 (9th Cir. 1986).

Great deference, coupled with an ill-defined standard of

review, leads to a complete lack of meaningful review.

Unless the agency’s expertise is brought to bear through

independent verification, the agency’s analysis of the

applicant’s proposal should not be entitled to much

weight and deference. When an agency’s analysis is so

fundamentally flawed, it cannot be said whether signifi-

cant impacts exist. In that event an EIS needs to be

prepared.

CONCLUSION

If the judiciary relegates NEPA review to unbridled

agency discretion, meaningful review becomes impossi-

ble. If, on the other hand, the better reasoned approach

utilized in some circuits is adopted, the courts will retain

the authority to review de novo the ultimate conclusions

of an agency. Different levels of deference should be

applied as agency expertise and involvement increase.

This case demonstrates the need for the courts to retain

sufficient power of review to prevent “the spirit of the

Act” from dying aborning because the agency’s actions

are “too well shielded from impartial review.” This is a

significant question as to the proper interpretation of a

federal statute.

Therefore, because of the importance of the question,

the need for uniformity of law in the circuits and to

redress the miscarriage of justice that has occurred below,

the Village respectfully asks that this Court grant cer-

tiorari to consider the proper standard of review and its

application to the circumstances of this case.

Respectfully submitted,

WitiiaAM G. WALKER

Counsel of Record for Petitioners

Douctas L. Hayes

WALKER & VAN HEIJENOORT

150 Louisiana Blvd. NE

Albuquerque, NM 87108

(505) 268-4551

May, 1992

APPENDIX TABLE OF CONTENTS

Page

Supplemental En Banc Order on Petition for

Rehearing and Suggestion for Rehearing En

Banc, Tenth Circuit Court of Appeals, February

SCs enh Wee GhEN GES CaN as Gauss a Aaa es dea la

Order and Judgment, Tenth Circuit Court of

Appeals, October 26, 1991 ..... 0... cc cece ccesss 8a

Final Judgment, District Judge John Conway, Feb-

Re Gs NOs ex nvick bi bab eciseneeeee hae cks 19a

Memorandum Opinion and Order, District Judge

John Conway, November 30, 1989................ 20a

Transcript of Proceedings, pages 328-330, 334, 493,

We ir ieee eaten eye ate ee 26a

Memorandum Opinion and Findings of the Court

on Plaintiffs’ Motion for Preliminary Injunction,

District Judge John Conway, May 26, 1989....... 30a

Memorandum Opinion and Order, District Judge

John Conway, May 11, 1989 ..................... 67a

Memorandum Opinion and Order, District Judge

John Conway, May 8, 1989 ...................... 70a

Se MC MUIR WAG. bia ss du ann se eeadwkaucles 88a

Administrative Procedures Act

ee eee ce li was eet gas ews 89a

hc 3 te er rere a 89a

> Un. & 708 (partial) ..... 2... ccc cess. hia 5 ee

A We eo ned 90a

lia

APPENDIX TABLE OF CONTENTS - Continued

Page

National Historic Preservation Act

Om Riera PME ks cvs deheciseenamsecuee eee 92a

Clean Water Act

33 USC § 1344 (a)-(d). 0... ccc ccc cc cece. 93a

National Environmental Policy Act of 1969

ell | neat 95a

42 USC § 4332 (partial). ...... occ ccc ccc cece. 95a

33 CFR Part 230

Corps NEPA Implementation Procedures (1991)

ee Se 8 rm ya 98a

33 CFR Part 320

Corps General Regulatory Policies (1991)

33 CFR § 320.4(a) | re rei Merde ee 99a

33 CFR Part 325

Corps Permit Processing Regulations (1991)

PP MOR BF OOM a kc nxanicsnccaccie csc reee 10la

33 CFR Part 325, App. B

Corps NEPA Implementation Procedures for the Regula-

tory Program (1991)

33 CFR App. B.7 (partial).................0.0... 102a

40 CFR Chap. V

Council on Environmental Quality Regulations (1991)

40 CFR § 1502.9 (partial) ....................... 103a

40 CFR § 1502.14.20... cece cccccccc cece. 103a

40 CFR § 1506.5 (a)-(b) ... 2.0... cece cece eee. 104a

onde A | een ese)t 105a

adie. ind i.” resets ln 105a

ode aut E, * Seren tenn 105a

40 CFR § 1508.7... 0... cc cccc cc ceec cece n., 105a

oda 1 ne 106a

ody tit 2. ere. 106a

ilia

APPENDIX TABLE OF CONTENTS - Continued

Page

ess eco sce e eee sccsccccccce. 107a

ee ease cece ee sccssccccce. 108a

46 Fed Reg 18026, 18037 (1981) Council on Envi-

ronmental Quality, Forty Most Asked Questions

Concerning CEQ’s NEPA Regulations, 36a &

I 110a

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VILLAGE OF LOS RANCHOS DE

ALBUQUERQUE; ANNE

BULLOCK; STEVEN

RUFFENNACH; EDWARD BANKS;

BILL DERR; R.E. CLARK; ANN

CLARK; CONRAD STACK;

ARNOLD SARGEANT; KIT

SARGEANT; RIO GRANDE

VALLEY PRESERVATION

SOCIETY,

Plaintiffs-Appellants,

Vv.

)

JOHN O. MARSH, este I se the?

Department of the Army; KE R.)

GENSER, Colonel, District "3

Engineer for the Albuquerque )

District of the Army Corps of )

Engineers; FRANK DUNKLE,

Director of the United States Fish ?

and Wildlife Services MANUEL)

LUJAN, JR., Secretary of the

Department of the Interior; )

HENRY J. HATCH, Lieutenant

General; MICHAEL SPEAR, Region)

2 (Southwest Region) of the Fish

and Wildlife Service; CITY OF )

ALBUQUERQUE, :

)

Defendants-Appellees.

No. 90-2012

No. 90-2026

No. 90-2052

(D.C.N.M. No.

88-1032-JC)

SUPPLEMENTAL EN BANC ORDER

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Filed Feb. 11, 1992)

Before McKAY, Chief Judge, ALDISERT,* HOLLOWAY,

LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA,

BALDOCK, BRORBY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

The appellants have filed a Petition for Rehearing

and Suggestion for Rehearing en Banc to reconsider the

decision rendered in our unpublished Order and Judg-

ment of October 24, 1991. In that Order, we applied an —

“arbitrary and capricious” standard to review an agency

determination that a proposed project would not have an

environmentally significant impact sufficient to require

an Environmental Impact Statement (“EIS”)! under the

National Environmental Policy Act (“NEPA”), 42 U.S.C.

. The Honorable Ruggero J. Aldisert, Senior Circuit Judge

for the Third Circuit, sitting by designation. Judge Aldisert

participated in original panel’s consideration of the petition for

rehearing but did not participate in the rehearing en banc.

42 U.S.C. § 4332(2)(C)(i) requires that “all agencies of the

Federal Government shall . . . include in every recommenda-

tion 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... the environmental impact of the proposed action.”

§ 4321 et seq. Order and Judgment at 4 (citing Marsh v.

Oregon Natural Resources Council, 490 U.S. 360, 385 (1989)).

In their petition for rehearing, the appellants point out

that prior to the Supreme Court’s decision in Marsh, the

relevant standard of review in this Circuit was “rea-

sonableness.” See Sierra Club v. Hodel, 848 F.2d 1068, 1089

(10th Cir. 1988); Park County Resource Council, Inc. v.

United States Dep't of Agric., 817 F.2d 609, 621 & n.4 (10th

Cir. 1987) (noting circuit split on appropriate standard of

review); City of Aurora v. Hunt, 749 F.2d 1457, 1468 (10th

Cir. 1984); League of Women Voters v. United States Corps of

Engineers, 730 F.2d 579, 584-85 (10th Cir. 1984); Brandon v.

Pierce, 725 F.2d 555, 563 (10th Cir. 1984); Jette v. Bergland,

979 F.2d 59, 64 (10th Cir. 1978); Wyoming Outdoor Coor-

dinating Council v. Butz, 484 F.2d 1244, 1248-49 (10th Cir.

1973).?

The panel that rendered the decision denies the peti-

tion for rehearing.

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing en

banc was transmitted to all of the judges of the court in

regular active service. Based upon aq poll of those judges,

rehearing en banc was granted limited to the single issue

of the appropriate standard for judicial review of an

2 A recent Tenth Circuit case, Sierra Club v. Lujan, 949 F.2d

362 (10th Cir. 1991), noted the apparent conflict between Marsh

and Tenth Circuit precedent. Id. at 367-68. In Lujan, we held

that under the particular facts of that case, the arbitrary and

capricious standard of review controlled. Id. at 368.

agency's determination that a project does not have suffi-

cient environmental impact to require an EIS.3

The court concludes that the appropriate standard for

reviewing an agency’s determination that a proposed

project will not have environmental impact significant

enough to require an EIS is the arbitrary and capricious

standard of 5 U.S.C. § 706(2)(A).

The court summarizes the facts relevant to this issue -

as follows. The United States Army Corps of Engineers

prepared an Environmental Assessment (“EA”) of the

effects of building the proposed Montano Bridge. Based

on the EA, the Corps decided that the project would

cause no significant environmental impact and therefore

concluded that it need not prepare an EIS. The appellants

brought suit, alleging among other things that the finding

of no significant impact and the failure to prepare an EIS

violated NEPA. The district court granted summary judg-

ment to the appellees. In its Order and Judgment of

October 24, 1991, this court affirmed the district court.

In Marsh, the Supreme Court addressed the “narrow

question” of what standard the courts should use to

review an agency’s determination that an EIS need not be

supplemented. Marsh, 490 U.S. at 375-76. The Court rec-

ognized that the circuits were split as to whether to apply

3 The en banc court has determined unanimously that

additional oral argument and briefing would not materially

assist its determination. Accordingly, the rehearing is ordered

submitted without reargument or further briefing.

the arbitrary and capricious standard or the reasonable-

ness standard and concluded that the arbitrary and capri-

cious standard controlled. Id. at 375-77 & n.23. The Court

characterized. that case as

a classic example of a factual dispute the resolu-

tion of which implicates substantial agency

expertise. ... The dispute .. . does not turn on

the meaning of the term “significant” or on an

application of this legal standard to settled facts.

Rather, resolution of this dispute involves pri-

marily issues of fact. Because analysis of the

relevant documents “requires a high level of

technical expertise,” we must defer to the

“informed discretion of the responsible federal

agencies.” . . . Accordingly, as long as the

[agency’s] decision not to supplement the [EIS]

was not “arbitrary or capricious,” it should not

be set aside.

Id. at 376-77 (footnotes and citations omitted).

The initial decision that a project will not have signif-

icant impact and therefore will not require an EIS is no

less a factual determination than the decision that new

information is not significant and therefore will not

require supplementing an existing EIS. See id. at 374

(“[T]he decision whether to prepare a supplemental EIS is

similar to the decision whether to prepare an EIS in the

first instance: If there remains ‘major federal actio[n]’ to

occur, and if the new information is sufficient to show

that the remaining action will ‘affec[t] the quality of the

human environment’ in a significant manner or to a sig -

nificant extent not already considered, a supplemental

EIS must be prepared.”) (citation and footnote omitted).

Therefore, the court views the Supreme Court’s reasoning

as equally applicable to an agency’s initial decision that a

project will not have significant environmental impact.

Rather than create traps for the unwary by establish-

ing different standards of review for similar agency

actions, the court believes it preferable to use the arbi-

trary and capricious standard to review an agency’s

determination of the necessity of both an initial and a

supplemental EIS, at least where the issue is whether the

project will have significant environmental impact. See

Goos v. Interstate Commerce Comm'n, 911 F.2d 1283, 1292

(8th Cir. 1990); North Buckhead Civic Ass’n v. Skinner, 903

F.2d 1533, 1538 (11th Cir. 1990) (adopting “the arbitrary

and capricious standard when reviewing agency action in

NEPA cases”).4 To the extent that our prior cases held

that a reasonableness standard of review should be used,

see Hodel, 848 F.2d at 1089; Park County Resource Council,

Inc., 817 F.2d at 621 & n.4; Hunt, 749 F.2d at 1468; League of

Women Voters, 730 F.2d at 584-85; Brandon, 725 F.2d at 563;

Jette, 579 F.2d at 64; Butz, 484 F.2d at 1248-49, they are

inconsistent with Marsh, 490 U.S. at 375-77, and we now

* The Eighth Circuit held in Goos that the arbitrary and

capricious standard governs review of whether significant

impact existed to require an EIS. The court held, however, that

the reasonableness standard would continue to control review

of the “threshold issue” of whether the project involved “major

federal action” sufficient to implicate NEPA. Goos, 911 F.2d at

1292. In our own circuit, courts used, prior to Marsh, the

reasonableness standard to review an agency’s determination

that no “major federal action” was involved. See Hodel, 848 F.2d

at 1089. On appeal, the parties do not raise the issue whether

the Montano Bridge Roadway project involves major federal

action; therefore, we do not address whether Marsh alters the

standard of review of that agency determination.

overrule such holdings. As the Supreme Court observed

in Marsh, “the difference between the ‘arbitrary and

capricious’ and ‘reasonableness’ standards is not of great,

pragmatic consequence”; therefore, changing to the for-

mer “will not require a substantial reworking of long-

established NEPA law.” Marsh, 490 U.S. at 377-78 n.23.

Because the court concludes that the prior Order and

Judgment in this case applied the correct standard of

review, the court AFFIRMS the prior judgment in that

regard, which is the only issue considered in this rehear-

ing en banc.

It is so ORDERED.

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VILLAGE OF LOS RANCHOS DE )

ALBUQUERQUE; ANNE

BULLOCK; STEVEN

RUFFENNACH; EDWARD BANKS;

BILL DERR; R.E. CLARK; ANN

CLARK; CONRAD STACK;

ARNOLD SARGEANT; KIT

SARGEANT; RIO GRANDE

VALLEY PRESERVATION

SOCIETY,

Plaintiffs-Appellants,

JOHN O. MARSH, Secretary of the

Department of the Army; KENT R.

GENSER, Colonel, District

Engineer for the Albuquerque

District of the Army Corps of

Engineers; FRANK DUNKLE,

Director of the United States Fish

and Wildlife Service; MANUEL

LUJAN, JR., Secretary of the

Department of the Interior;

HENRY J. HATCH, Lieutenant

General; MICHAEL SPEAR, Region

2 (Southwest Region) of the Fish

and Wildlife Service; CITY OF

ALBUQUERQUE,

eee eee eee ee ee eee ee ee ee ee ee ee ee ee ee ee ee ee”

Defendants-Appellees.

No. 90-2012

No. 90-2026

No. 90-2052

(D.C. No.

88-1032-JC)

(Dist.

New Mexico)

A eh Be alia ide Bases ec nealdl Jat lees ee lan al 5

Fo Dah Vertig ch ile 06

ORDER AND JUDGMENT*

(Filed Oct. 24, 1991)

Before HOLLOWAY, ALDISERT,** and EBEL, Circuit

Judges.

BACKGROUND

This is an appeal from the district court’s order gran-

ting summary judgment to appellees. A more complete

recitation of the facts surrounding this controversy

appear in Village of Los Ranchos de Albuquerque v. Barnhart,

906 F.2d 1477, 1478-79 (10th Cir. 1990), cert. denied, 111 S.

Ct. 1017 (1991). Therefore, for the sake of brevity, we

summarize the facts surrounding this particular appeal.

In the lower court, appellants sought declaratory and

injunctive relief in order to challenge the United States

Army Corps of Engineers (“the Corps”) decision to issue

a permit that would allow the proposed Montano Bridge

to be built over the Rio Grande River. Appellants asserted

in the lower court that the granting of the permit pur-

suant to 33 U.S.C. § 1344 (§ 404 of the Clean Water Act)

for a fill of the waters of the United States in conjunction

with the Montano Bridge violated various federal laws

This order and judgment has no precedential value and

shall not be cited, or used by any court within the Tenth

Circuit, except for purposes of establishing the doctrines of the

law of the case, res judicata, or collateral estoppel. 10th Cir. R.

36.3.

** The Hon. Ruggero J. Aldisert, Senior Circuit Judge for the

Third Circuit, sitting by designation.

and regulations, including the National Environmental

10a

Policy Act (“NEPA”).

Specifically, the district court summarized the appel-

lants’ contentions as follows:

That the defendants violated NEPA by fail-

ing to prepare an Environmental! Impact

Statement and by finding that the Montano

project would not have significant environ-

mental impact, and by failing to fully

address the impacts of the corridor associ-

ated with the project;

That the district engineer of the Corps vio-

lated EPA guidelines by granting a § 404

permit to the City despite the existence of

alternatives to the bridge which would have

a less adverse impact on the Rio Grande

Bosque area;

That the Corps violated § 404 of the Clean

Water Act by failing to designate the Bosque

habitat in and adjacent to the Montano corri-

dor as wetlands. In addition, the Corps

failed to meet its obligation under the Clean

Water Act to make a reasoned wetlands

determination based on the fact that it did

not gather sufficient information;

That in failing to find that practical alterna-

tives with less adverse impact on the Bosque

existed, and in finding that the granting of

the § 404 permit was contrary to the public

interest, the district engineer’s decision was

arbitrary, capricious and an abuse of discre-

tion which is unlawful and should be set

aside pursuant to the Administrative Pro-

cedure Act;

lla

5. That the Fish and Wildlife Service failed to

fulfill its responsibility by failing to recom-

mend the no project alternative when mit-

igation could not be accomplished, or to

recommend that the bridge be placed in a

less-environmentally damaging site.

Dist. Ct. Opin. at 2.

Appellees asserted that the plaintiffs had not “made

a prima facie showing sufficient to warrant continued

litigation on this matter, since they ha[d] not presented

evidence that the administrative agency acted in an arbi-

trary, Capricious or otherwise unlawful manner.” Id. at 3.

The district court, citing Sabin v. Butz, 515 F.2d 1061, 1067

(10th Cir. 1975), ruled in favor of the defendants, and

granted their request for summary judgment. Dist. Ct.

Opin. at 5. The court found that the issue before it was

not “whether the plaintiffs can point to one or other

conflicting fact or opinion in the record. . . . Instead, the

issue before the Court is whether the record before the

administrative agency substantiate[d] that agency’s find-

ing.” Id. at 3-4.

ANALYSIS

I. No Error In Granting Of Summary Judgment

The first issue that appellants raise is whether

[t]he granting of federal defendants’ motion for

summary judgment was erroneous because gen-

uine issues as to material facts exist regarding

whether the Finding of No Significant Impact by

the Corps [of Engineers] was justified by the

Environmental Assessment as required by § 404

of the Clean Water Act, 33 U.S.C. § 1344, and

12a

NEPA, 42 U.S.C. § 4332, et seq., and applicable

~—-regulations.

Appellants’ Br. at 9.

The mere existence of genuine issues of material fact

in the record before the Corps would not, in this case,

preclude a granting of summary judgment in the district

court in favor of the defendants. The district court, as a

reviewing Court, need only decide if there is a material

dispute about whether the agency at issue acted in an

“arbitrary or capricious” manner. See Marsh v. Oregon

Natural Resources Council, 490 U.S. 360, 385 (1989). We

agree with the appellees that “[t]his standard of review is

highly deferential.” Friends of the Earth v. Hintz, 800 F.2d

822, 821 (9th Cir. 1986). Indeed, the Supreme Court has

stated that

in making the factual inquiry concerning

whethér an agency decision was “arbitrary or

capricious,” the reviewing court “must consider

whether the decision was based on a consider-

ation of the relevant factors and whether there

has been a clear error of judgment.” This

inquiry must “be searching and careful,” but

“the ultimate standard of review is a narrow

one.” When specialists express conflicting

views, an agency must have discretion to rely on

the reasonable opinions of its own qualified

experts even if, as an original matter, a court

might find contrary views more persuasive.

Marsh, 490 U.S. at 378 (citation omitted).

The district court’s “Memorandum Opinion and

Order,” dated November 30, 1989, and its “Memorandum

Opinion and Findings of the Court on Plaintiffs’ Motion

Me ia etiace ina, tie winbail. *.

13a

for Preliminary Injunction” (“Dist. Ct. Findings”), filed

May 26, 1989, demonstrate that it focused on the adminis-

trative record. Indeed, the district court cited to ample

evidence to support the conclusion that the agency

actions were not conducted in an arbitrary or capricious

manner. Clearly, there are disputes about, for instance,

the ultimate impact of fracturing the bosque, the potential

for secondary impacts arising from the project, and the

availability of alternative forms that the project could

take. However, we agree with the district court that there

was ample evidence to affirm the agency’s finding of no

significant impact for purposes of NEPA under the “arbi-

trary or capricious” standard of review. We review the

different areas of dispute.

A. The Bosque and Wetlands Issues:

The district court found that the environmental

assessment and administrative record disclosed that the

preservation of the bosque and potential adverse effects

were discussed at length. We agree and have reviewed

this record. See Environmental Assessment (“EA”) at

10-13, 24-27, 35, 46-47; Administrative Record (“AR”) Vol.

II] at 270-271, 288-89, 320-21, 326-27. We do not agree

with appellants’ assertion that “The Record is Inadequate

to Support the Corps’ ‘No Wetlands’ Finding” concerning

the Bosque. Appellants’ Br. at 37. We have examined the

evidence on this issue, and find it adequate to support

the agency’s finding. Indeed, the district court paid par-

ticular attention to this determination by the Corps, and

we agree that the agency had the benefit of ample studies

and reports on the topic. See Dist. Ct. Findings at 31-32.

l4a

B. Secondary and Cumulative Impacts:

On the issue of secondary and cumulative impacts,

we agree with the appellants that projects may have

“synergistic effects which make[] their cumulative

impacts relevant to the significant impacts determina-

tion.” Appellants’ Br. at 16-17 (footnote omitted). This

alone, however, does not mean that the agency was arbi-

trary or capricious in finding that the secondary and

cumulative impacts did not create a significant impact

under NEPA. There is ample evidence on the record,

recited by the district court, see Dist. Ct. Findings at

13-16, which we have reviewed, to demonstrate that

effects on noise level, air quality, and traffic and other

potential impacts were all adequately considered. See EA

at 15-16, 21, 24; AR Vol. IV at 443; Vol. VI at 834-45.

C. Alternatives:

We agree with appellees that the “district court’s

extensive discussion of the Corps’ consideration of alter-

natives is thorough and well-reasoned.” Appellees’ Br. at

30. We have reviewed the evidence upon which the dis-

trict court relied, and agree that “{a]lthough this Court

feels that alternatives for accomplishing the overall goal

probably exist, the Court’s role is only to assure that the

Corps properly studied piausible alternatives.” Dist. Ct.

Findings at 24. Alternatives are always possible, and we

believe that the agency properly considered and weighed

such contingencies. See EA at 2-5, 44; Dist. Ct. Findings at

20-25.

This evidence is more than enough to support an

affirmation of the district court's granting of summary

$b ba ls ON DN i

15a

judgment. Although parties will always disagree over

agency determinations, “(t]he question{s] presented for

review in this case [are] classic example[s] of a factual

dispute the resolution of which implicates substantial

agency expertise.” Marsh, 490 U.S. at 376. Thus, we have

approached the review under the deferential standard of

whether the actions were arbitrary or capricious, and

affirm the district court’s granting of summary judgment.

II. No Error In Court’s Refusal To Consider New Evi-

dence

The appellants’ second and fourth issues essentially

allege that the district court limited the range of evidence

it would hear and refused to consider new evidence that

was placed before it on the motion for summary judg-

ment. In particular, this evidence related to issues of

public nuisance such as noise and population levels and

the fracturing of the Bosque.

We agree with the appellees that “the district court

properly heeded the general rule that judicial review of

agency action is limited to review of the administrative

record.” Appellees’ Br. at 34. The Supreme Court has

Stated in no uncertain terms that

ordinarily review of administrative decisions is

to be confined to “consideration of the decision

of the agency . . . and of the evidence on which

it was based.” “[T]he focal point for judicial

review should be the administrative record

already in existence, not some new record made

initially in the reviewing court.”

l6a

Florida Power Comm’n v. Transcontinental Gas Pipe Line

Corp., 423 U.S. 326, 331 (1976) (citations omitted). There

are sound reasons why some technical questions are dele-

gated to the agency inquiry and decision process, with

courts playing a role of review. In this case, the agency

was the appropriate place to litigate this matter, and the

district court did not err by limiting the evidence it heard

and thereby preventing the appellants from possibly

relitigating the case in its forum. See Vermont Yankee

Nuclear Power Corp. v. Natural Resources Defense Council,

Inc., 435 U.S. 519, 553-54 (1978).

Notwithstanding its own holding limiting the evi-

dence, the district court took into account the new evi-

dence and found that “[e]ven if the Court were to

consider the ‘nuisance’ evidence, it does not establish

that the federal defendants acted arbitrarily or capri-

ciously.” Dist. Ct. Opin. at 5. On appeal, we have

reviewed this new evidence and agree with the conclu-

sion of the lower court. Thus, we affirm on this alterna-

tive ground.

III. Irreparable Harm Is Not Equal To Significant Impact

In its ruling, the district court stated “that the ‘frac-

turing’ of the Bosque will cause irreparable and irretriev-

able injury to the Bosque- itself.” Id. Appellants seize

upon this statement to argue that “[hjaving found irrepa-

rable and irretrievable harm to the Bosque, the Court was

required to remand for appropriate evaluation by the

Corps.” Appellants’ Br. at 45. We disagree with this con-

tention, and note that the district court also stated “that

the Corps of Engineers properly put these considerations

17a

through its own balancing test, and determined that on

balance the Montano Bridge site was the most appropri-

ate for accomplishing the applicants’ purposes.” Dist. Ct.

Opin. at 5.

We simply cannot agree with the appellants’ conten-

tion that, in essence, the district court’s statement con-

cerning irreparable injury mandated a remand on the

issue of whether there was a significant impact under

NEPA. Whenever there is an undertaking of the magni-

tude of the Montano Bridge project, there may be some

irreparable injury inflicted upon the surrounding area.

All parties, including the district court, appear to agree

on that proposition. However, it does not follow that

therefore there is a significant impact as that term is

meant under NEPA. Thus, we find no error in the fact

that the district court did not remand the case after

stating that irreparable injury would occur to the Bosque

because some of it would be lost during the project.

IV. No Error Concerning Fish And Wildlife Service

Actions

We disagree with the appellants that the “Fish and

Wildlife Service [“FWS”] . . . has failed to fulfill its

responsibilities under the Fish and Wildlife Coordination

Act,” Appellants’ Br. at 48, by failing to recommend that

the project not proceed, and that therefore the Fish and

Wildlife Service somehow acted arbitrarily or capri-

ciously. We first note that it is uncontested by the appel-

lants that “the Corps adopted all of the FWS

recommendations,” and that they “were incorporated

18a

into the permit as Special Conditions.” Appellees’ Br. at

41; see also Dist. Ct. Findings at 32-33.

Additionally, we agree with appellees that “[t]his

case is an example of the benefits of the process,” to the

extent that the Corps appears to have worked with the

Fish and Wildlife Service and given its Suggestion serious

consideration. See EA 27-28; AR Vol. I Tab A at 4; Fish and

Wildlife Service AR Supplemental Vol. IV at 10, 12-14, 21.

The FWS did not violate any of its legal obligations in

failing to recommend a “no project” alternative in this

case and what input that FWS did offer was adequately

considered by the Corps.

It would unduly prolong this Order were we to

address each other dispute raised by appellants. Suffice it

to say that we have carefully reviewed the record and in

all regards complained of by appellants we have con-

cluded that the district court order should be AFFIRMED.

Entered for the Court:

David M. Ebel

Circuit Judge

19a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

VILLAGE OF LOS RANCHOS

DE ALBUQUERQUE, et al.,

Plaintiffs,

v. No. CIV 88-1032 JC

LIEUTENANT GENERAL HENRY

J. HATCH, et al.,

Defendants.

FINAL JUDGMENT

(Filed Feb. 28, 1990)

PURSUANT TO the Memorandum Opinion and

Order entered in this matter on November 30, 1989, IT IS

ORDERED, ADJUDGED AND DECREED that final judg-

ment be, and the same hereby is, entered for the defen-

dants in this matter and the relief requested by the

plaintiffs is denied.

/s/ John E. Conwa

UNITED STAT DISTRICT JUDGE

SUBMITTED BY:

/s/ John W. Zavitz

Assistant U.S. Attorney

For Defendants

APPROVED AS TO FORM:

/s/ William G. Walker

WILLIAM G. WALKER

Attorney for Plaintiffs

20a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

VILLAGE OF LOS RANCHOS

DE ALBUQUERQUE, et al.,

Plaintiff,

Vs. No. CIV 88-1032 JC

LIEUTENANT GENERAL ENTERED: 11-30-89

HENRY J. HATCH, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

(Filed Nov. 30, 1989)

THIS MATTER is now before the Court on the federal

defendants’ Motion for Summary Judgment, filed May 2,

1989. Having reviewed the memoranda of the parties,

heard evidence presented at the preliminary injunction

hearing, heard the arguments of counsel, and reviewed

the applicable law, this Court finds that the motion is

well-taken and will be granted.

This case involves a challenge to the decision of the

United States Army Corps of Engineers to issue a permit,

pursuant to 33 U.S.C. § 1344 (§ 404 of the Clean Water

Act) for a fill of the waters of the United States in con-

junction with the construction of the proposed Montano

Bridge across the Rio Grande River. The applicant for the

permit is the City of Albuquerque. Early on in this case,

the plaintiffs moved for a preliminary injunction to halt

further progress on the construction of the bridge. The

motion was denied. The plaintiffs’ grounds for the pre-

liminary injunction then, as now, are set forth in the

2la

Initial Pre-Trial Report filed on May 31, 1989.

At page 2, paragraphs 1-5, the plaintiffs’ contentions

are summarized as follows:

That the defendants violated NEPA by fail-

ing to prepare an Environmental Impact

Statement and by finding that the Montano

project would not have significant environ-

mental impact, and by failing to fully

address the impacts of the corridor associ-

ated with the project;

That the district engineer of the Corps vio-

lated EPA guidelines by granting a § 404

permit to the City despite the existence of

alternatives to the bridge which would have

a less adverse impact on the Rio Grande

Bosque area;

That the Corps violated § 404 of the Clean

Water Act by failing to designate the Bosque

habitat in and adjacent to the Montanio corri-

dor as wetlands. In addition, the Corps

failed to meet its obligation under the Clean

Water Act to make a reasoned wetlands

determination based on the fact that it did

not gather sufficient information;

That in failing to find that practical alterna-

tives with less adverse impact on the Bosque

existed, and in finding that the granting of

the § 404 permit was contrary to the public

interest, the district engineer’s decision was

arbitrary, capricious and an abuse of discre-

tion which is unlawful and should be set

22a

aside pursuant to the Administrative Pro-

cedure Act;

5. That the Fish and Wildlife Service failed to

fulfill its responsibility by failing to recom-

mend the no project alternative when mit-

igation could not be accomplished, or to

recommend that the bridge be placed in a

less-environmentally damaging site.

All of these contentions were argued at the prelimi-

nary injunction hearing conducted by the Court from

May 15 through May 17, 1989. At that time, counsel for

both parties had the opportunity to present additional

evidence, and to reargue evidence contained within the

Administrative Record. After having heard three days of

argument, this Court again reviewed the memoranda

submitted by the parties and the entire Administrative

Record for purposes of determining whether a prelimi-

nary injunction should issue. This Court ultimately deter-

mined that the Motion for Preliminary Injunction should

be denied, and on May 26, 1989 issued a thirty-nine page

opinion detailing its findings and conclusions.

Since the issuance of that opinion, the parties have

not come forward with any material, relevant to the cur-

rent motion, which has not been previously presented to

the Court. In ruling on the Motion for Preliminary Injunc-

tion, the Court found that the plaintiff had not estab-

lished a substantial likelihood of prevailing on the merits

of their case in that they were unable to establish that the

Corps had undertaken the decision not to require an EIS

for an arbitrary, capricious or otherwise illegal purpose.

This Court found that the review of the Montanio project

Dare Pitatiased Didndnarte state eo &

}

23a

conducted by the Corps of Engineers addressed each of

the concerns raised by the plaintiffs.

The federal defendants now request that this Court

rule that the plaintiffs have not made a prima facie

showing sufficient to warrant continued litigation of this

matter, since they have not presented evidence that the

administrative agency acted in an arbitrary, capricious or

otherwise unlawful manner. The issue before this Court is

not whether the plaintiffs can point to one or other con-

flicting fact or opinion in the record. As the federal defen-

dants have pointed out, the record in these types of

proceedings will always contain contradictory opinions.

Instead, the issue before the Court is whether the record

before the administrative agency substantiates that

agency's findings. Sabin v. Butz, 515 F.2d 1067 (10th Cir.

1975).

Before any administrative action can be set aside, the

challenging party must prove that the action is unreason-

ing, without consideration, and in disregard of the facts

and circumstances of the case. Coleman v. Darden, 595

F.2d 533, 539 (10th Cir. 1970). Rather than restate all of the

Court’s findings in this opinion, the Court will incorpo-

rate by reference its findings as found in the May 26, 1989

Memorandum Opinion. As outlined therein the plaintiffs

have not provided sufficient evidence or otherwise

shown how the Corps of Engineers failed to comply with

NEPA’s procedural requirements or failed to undertake a

good faith, objective effort to comply with those require-

ments. The plaintiffs have failed to show that the record

is insufficient as a basis for the Corps of Engineers’

conclusions.

24a

The plaintiffs have proferred new evidence relating

to the “public nuisance” issue, which they apparently

now seek to have admitted in this proceeding. This evi-

dence has not been considered in conjunction with the

current motion. Such consideration would violate the

Court’s earlier order which stated that the only extra-

record evidence which would be admitted was that which

concerned the effects of “fracturing” on the Bosque. The

new evidence on the “public nuisance” issue has been

improperly submitted by the plaintiffs. In this review of

an agency action based on the Administrative Record, it

is inappropriate for the plaintiffs to seek to admit evi-

dence outside of the Administrative Record in an effort to

relitigate their case at the district court level. Florida

Power & Light Co. v. Lorion, 470 U.S. 729 (1985); Federal

Power Comm'n v. Transcontinental Gas Pipeline Corp.,

423 U.S. 326, 331 (1976).

Even if the Court were to consider the “nuisance”

evidence, it does not establish that the federal defendants

acted arbitrarily or capriciously. This Court has already

recognized that the “fracturing” of the Bosque will cause

irreparable and irretrievable injury to the Bosque itself,

but the Court has also found that the Corps of Engineers

properly put these considerations through its own bal-

ancing test, and determined that on balance the Montajio

Bridge site was the most appropriate for accomplishing

the applicants’ purposes.

Therefore, based on the Court’s previous findings in

this matter, and based on the fact that the plaintiffs have

not come forth with any new evidence, this Court finds

that the federal defendants are entitled to judgment as a

matter of law, and that there are no genuine issues as to

25a

relevant material facts. Summary judgment is appropriate

in accordance with Rule 56 of the Federal Rules of Civil

Procedure, and will be entered on behalf of the defen-

dants. |

Wherefore,

IT Is ORDERED, ADJUDGED AND DECREED that

the defendants’ Motion for Summary Judgment be, and

the same hereby is, granted.

DATED this 30th day of November, 1989.

/s/ John E. Conway

UNITED STATES DISTRICT JUDGE

Attorneys:

For Plaintiffs: William G. Walker, Esq.

Thomas L. Popejoy, Esq.

For Defendants: Donald A. Carr. Esq.

Roger J. Marzulla, Esq.

Kaye A. Allison, Esq.

John Zavitz, Esq.

Susan K. Ehlen, Esq.

Pauline Milius, Esq.

Darrell R. Rickenberg

26a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

HONR. JOHN E. CONWAY, JUDGE PRESIDING

VILLAGE OF LOS RANCHOS )

de ALBUQUERQUE, et al., )

Plaintiffs, )

) No. CIV 88-1032 JC

Vs.

E. R. HEIBERT, et al., )

auukcmeeaniads Defendants. a

REPORTER’S TRANSCRIPT OF PROCEEDINGS

May 16, 1989

Barbara K. Harris

Official Court Reporter

(505) 842-9494

* * *

[p. 328] THE COURT: All right, the question

before me today that I am te decide is whether or not to

accept the testimony and find that the representation is

sufficient that I should accept that testimony.

In Friends of the Earth v. Hense, they state at page

828, with few exceptions, discussed below, judicial review

of an agency record is limited to a review of the adminis-

trative record.

And then they go on to say at 829, but exceptions

exist to the rule that review is limited to the administra-

tive record. A court may consider evidence outside the

administrative record is necessary to explain agency

action.

27a

When there is such a failure to explain administrative

action as to frustrate effective judicial review the court

may obtain from the agency, either through affidavits or

testimony, such additional explanations of the reasons for

the agency decision as may prove necessary.

The purpose of the court’s inquiry should be to ascer-

tain whether the agency considered all relevant factors or

fully exculpated its course of conduct or grounds of deci-

sion. They go on to state that the administrative record

was sufficient.

In County of Suffolk they state, at page 1384, that

generally, however, the allegations that an EIS has

neglected to mention a serious environmental conse-

quence, failed [p. 329] adequately to discuss some reason-

able alternative, or otherwise stubborn problems or

serious criticism under the road, 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 attack-

ing an agency determination that no such statement was

necessary.

The evidence introduced for the first time in the

district court, however, would be probative only in so far

as it attempted to show either that the agency’s research

or analysis was clearly inadequate or that the agency

improperly failed to set forth an opposing view, widely

shared in the relevant scientific community.

I am not satisfied that the agency record is sufficient.

I think that there is — the plaintiffs have carried their

burden on showing that I should go outside the record

28a

and consider the testimony of the doctor that testified

yesterday.

I do not see that I need to remand this back to the

Corps at this time. I think this is a matter of proof at the

time of the trial of this matter as to the sufficiency of

what they have done.

The government did not provide me a great deal of

information yesterday and I gave them the opportunity to

[p. 330] present additional witnesses, which they failed to

do. And so I will consider the testimony that I heard

yesterday for the purposes of the motion today on the

preliminary injunction.

. * *

[p. 334] THE COURT: One thing | failed to men-

tion, is that the testimony about Dr. Ohmart’s opinion as

to wetness will not be considered by me.

» * *

[p.493] THE COURT: Thank you, sir. You may

step down.

MS. HECTOR: I have one more matter that I ask

the court to take judicial notice of. This is the legislation

that was passed in the last legislature of the State of New

Mexico, which prohibits the use of taxpayer money on

any properties, historic properties, unless there is no

reasonable alternative, and this is part of our argument

related to the public interests and the law related to the

public interests on whether or not, if the legislatures have

spoken on what is the public interests.

29a

That’s all we have, your Honor, on the preliminary

injunction. The only thing I would move at this time, but

perhaps it’s best to wait until the end, is that we believe

that the testimony - we believe that the court should

reconsider the question of whether or not it should take

additional testimony on the noise impacts and the

impacts to historic preservation, and the impact to Dietz

Farms, because we believe that there is ample evidence to

support the same standard from the county of sufficient

objection to show the Court that there are significant

impacts which were not taken into account, and in that

case not addressed at all, | mean not even mentioned, and

that the administrative record cannot possibly tell the

Court what those impacts are.

THE COURT: That will be denied. Are you

ready to proceed?

30a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT COURT OF NEW MEXICO

VILLAGE OF LOS RANCHOS DE

ALBUQUERQUE, et al.,

Plaintiffs,

No. CIV 88-1032 JC

VS.

LIEUTENANT GENERAL HENRY J, ENTERED: 5-26-89

HATCH, CHIEF OF ENGINEERS OF

THE CORPS OF ENGINEERS, et al.,

Defendants.

MEMORANDUM OPINION AND FINDINGS

OF THE COURT ON PLAINTIFFS’

MOTION FOR PRELIMINARY INJUNCTION

(Filed May 26, 1989)

This case involves a challenge to the decision of the

United States Army Corps of Engineers, henceforth the

“Corps” to issue a permit, pursuant to 33 U.S.C. § 1344

(Sec. 404 of the Clean Water Act) for a fill of the waters of

the United States in conjunction with the construction of

a bridge across the Rio Grande River. The applicant for

the permit is the City of Albuquerque, and the proposed

bridge site is variously known as the “Montario Site,” the

“Montafio Project” and/or the “Preferred Alternative

Site.”

The plaintiffs have moved for a preliminary injunc-

tion which would halt further progress on the construc-

tion of the bridge pending a trial on the merits. For the

benefit of a complete record, the Court will briefly outline

the procedural history of this case.

3la

At various times from 1965 through the present, the

need for additional river crossings, connecting eastern

and western portions of the City of Albuquerque, has

been discussed and agreed upon by various elected offi-

cials and the Middle Rio Grande Council of Governments

(“MRGCOG”). A study by the Urban Transportation

Planning Policy Board of the MRGCOG reviewed a

number of alternative sites for the location of the addi-

tional river crossings, and in 1979 determined that the

“preferred alternative” included construction of a four-

lane bridge at the El Pueblo site, also known as the Paseo

del Norte site, and a two-lane crossing at Montafio Road

between Rio Grande and Coors Boulevards. The prefer-

red alternative, and others, were the subject of a Draft

Environmental Impact Statement prepared in 1980, AR

Vol. XII, and a Final Environmental Impact Statement

(“FEIS”) prepared in 1983, AR Vol. XI. Both statements

were prepared by the Federal Highway Administration

(“FHWA”) in conjunction with the New Mexico State

Highway Department.

In 1983 Albuquerque voters approved a general

obligation bond of $4,200,000 for general road improve-

ments. AR Vol. III, Tab B. Two years later the voters

approved a general obligation bond allocation of

$6,100,000, also for general improvements. The City ear-

marked these funds for construction of the Montafio

Bridge.

Just prior to the vote on the second bond appropria-

tion, and following the issuance of the Record of Decision

by the Corps, in January of 1984, the City of Albuquerque

announced its intention to proceed with the Montajio

Project. On August 30, 1984 the Village of Los Ranchos de

32a

Albuquerque, the Rio Grande Valley Preservation Society,

and a number of individuals filed suit in federal court

alleging, inter alia, that the FEIS had failed to analyze the

environmental impacts of the Montafio Project and failed

to do a comparative analysis of the project and other

reasonable alternatives. This suit is styled Village of Los

Ranchos de Albuquerque v. Barnhart, et al., No. CIV

84-1273 JB, and is currently pending on appeal to the

Tenth Circuit.

In April of 1986, the City applied to the Corps for a

permit pursuant to the requirements of § 404 of the Clean

Water Act, 33 U.S.C. § 1344. The permit is necessary

because the City’s plan for construction of the Montafio

Bridge includes the temporary placement of fill materials

in the navigable waters of the United States. Following

publication, solicitation of public comments, public hear-

ing, and considerations of the documents and comments

received, the permit, with thirteen special conditions, was

issued on July 6, 1987 by the district engineer, Lt. Col.

David E. Peixotto. Throughout the comment period, the

plaintiffs repeatedly requested that the Corps take the

position that the FEIS developed by the FHWA was inad-

equate and additionally requested that a new or supple-

mental! EIS be prepared to assist the Corps in making a

proper public interest determination and decision on the

permit application.

The Corps opted not to do a supplemental EIS.

Instead, pursuant to its responsibility to determine

whether a major federal action “significantly affect[s] the

quality of the human environment,” the Corps made a

“finding of no significant impact, (“FONSI”) supported

33a

by an environmental assessment (“EA”). This lawsuit

ensued.

On August 29, 1988 plaintiffs filed this claim chal-

lenging the permit, and on March 6, 1989 filed the Motion

for Preliminary Injunction that is the subject of these

findings.

The Tenth Circuit has established the standards that a

movant must meet in support of its application for pre-

liminary injunction. They are as follows:

1. The movant must show a substantial likeli-

hood that it will eventually prevail on the

merits;

2. The movant must show that it will suffer

irreparable injury unless the injunction

issues;

3. The movant must show that the threatened

injury outweighs whatever damage the pro-

posed injunction may cause the opposing

party; and

4. The movant must show that the injunction,

if issued, would not be adverse to the public

interest.

Lundgrin v. Claytor, 619 F.2d 61 (10th Cir. 1980) and

Otero Savings and Loan Ass’n. v. Federal Reserve Bank,

665 F.2d 275 (10th Cir. 1981). Furthermore, the Tenth

Circuit has made it clear that the “primary function of a

preliminary injunction is to preserve the status quo pend-

ing a final determination of the parties’ rights.” Penn v.

San Juan Hospital, Inc., 528 F.2d 1181, 1185 (10th Cir.

1975), Otero Savings and Loan Ass’n., supra at 277. In its

opinion in the Otero Savings case, the Court also stated

34a

that, as to the first part of the test regarding substantial

likelihood of success on the merits, “it will ordinarily be

enough that the plaintiff has raised questions going to the

merits so serious, substantial, difficult and doubtful, as to

make them a fair ground for litigation and thus for more

deliberate investigation.” Supra at 278. This Court will

address the four-part test in the order established by the

Tenth Circuit.

PART I

The plaintiffs’ claims against the Corps are lengthy

and will therefore be set out here for organizational pur-

poses:

Claim No. 1:

That the Environmental Assessment done by the

Corps and relied on to establish the FONSI is unreason-

able in that the impacts of the Montario Project have not

been adequately analyzed or disclosed for the decision-

makers or the public.

Claim No. 2:

That the EA is inadequate in that it fails to do a

sufficient comparison of alternatives to the Montafio Pro-

ject.

Claim No. 3:

That the Corps improperly segmented the Montario

Crossing Project as it relates to the bridge, from the

Montafio Corridor Project which involves the widening

and other improvements to Montafio Boulevard, thereby

utilizing an invalid basis for their study.

35a

Claim No. 4:

That the EA is inadequate because the Corps failed to

designate the area of the Bosque affected by the Montano

Project as “wetlands.”

Claim No. 5:

That the § 404 permit is invalid because the Fish and

Wildlife Service of the Department of the Interior has

failed to fulfill its responsibilities under the Fish and

Wildlife Coordination Act (“FWCA”).

Claim No. 6:

That the decision of the Corps to issue the permit

was arbitrary and capricious.

Analysis of Claim No. 1

The plaintiffs’ first claim is a broad allegation which

actually encompasses several separate sub-parts. The

Court will treat those sub-parts in the order they are

presented. First, however, the Court will set out the

appropriate standard of review of actions alleging agency

non-compliance with NEPA guidelines.

The United States Supreme Court, as recently as May

1, 1989, indicated that the “arbitrary and capricious” test

found at § 10e of the Administrative Procedures Act

(“APA”), 5 U.S.C. § 706, was the appropriate standard for

review of agency determinations not to supplement an

EIS. Marsh v. Oregon Natural Resources Council, No.

87-1703, 57 U.S.L.W. 4504 (May 2, 1989). The Tenth Circuit

has held that the standard for review of NEPA claims

generally is the “reasonableness” test. Park County

Resource Council v. Dept. of Agriculture, 817 F.2d 609,

36a

621 (10th Cir. 1987). As the Supreme Court noted, “the

difference between the ‘arbitrary and capricious’ and

‘reasonableness’ standards is not of pragmatic conse-

quence.” Marsh, supra at n. 23. An act which is reason-

able is neither arbitrary nor capricious, just as an

unreasonable decision is either arbitrary or capricious.

The essence of the rulings under either standard is to

assure that, in conducting its investigations or decision-

making processes, the agency in question makes a rea-

soned decision based on an evaluation of the relevant

‘actors. The Tenth Circuit recognized this in Park County

when they stated that “NEPA was designed to insure a

fully informed and well considered decision.” 817 F.2d at

621, quoting Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc. 435 U.S. 519,

558 (1978).

Furthermore, the standard of review of agency action

is highly deferential toward the agency. While the Court

“must consider whether the decision was based on a

consideration of the relevant factors and whether there

has been a clear error of judgment,” and while “this

inquiry into the facts is to be searching and careful, the

ultimate standard of review is a narrow one.” Friends of

the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986) quoting

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 416 (1971). Accord, Wyoming Outdoor Coordinating

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

United States Supreme Court has noted that when

reviewing the decision of a federal agency not to prepare

an EIS, a court shall not “interject itself within the area of

discretion . . . as to the choice of action to be taken.”

Strycker’s Bay Neighborhood Council v. Karlen, 444

37a

U.S. 223, 227-28 (1980). Once an agency has made a

decision subject to NEPA’s procedural requirements, the

only role for a court is to insure that the agency has

considered the environmental consequences. Id.

The plaintiffs’ first allegation under Claim No. 1 is

that the Corps erred in issuing the FONSI because the

environmental assessment failed to “provide sufficient

evidence and analysis for determining whether to pre-

pare an environmental impact statement... .” 40 C.FR.

§ 1508.9(a)(1).

NEPA requires that all federal agencies shall:

include in every recommendation or report on

proposals for legislation and other 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 effect which cannot be avoided

should the proposal be implemented, (iii) alter-

natives to the proposed action, (iv) the relation-

ship between local short-term uses of man’s

environment and the maintenance and enhance-

ment of long-term productivity; and (v) any

irreversible and irretrievable commitments of

resources which would be involved in the pro-

posed action shoula it be implemented.

In the event that an agency makes a finding of no

significant impact, as the Corps has done here, the FONSI

must be supported with an environmental assessment

(EA). The EA must include a comprehensive assessment

of the expected effects of a proposed action, Foundation

on Economic Trends v. Weinberger, 610 F. Supp. 829, 837

38a

(D.D.C. 1985), and “mere perfunctory language or con-

clusory language will not be deemed to constitute an

adequate record and cannot serve to support the agency’s

decision not to prepare an EIS.” Citizen Advocates for

Responsible Expansion v. Dole, 770 F.2d 423, 434 (5th

Cir. 1985). As noted above, it is the task of the reviewing

court to determine whether “the agency decision not to

develop an impact statement is reasonable and made

objectively and in good faith on a reviewable environ-

mental record.” Save Our Wetlands, Inc. v. Sands, 711

F.2d 634, 644 (Sth Cir. 1983).

Plaintiffs urge that with respect to the decision not to

prepare an EIS, the Court must determine “whether the

plaintiff has alleged facts which, if true, show that the

recommended project would materially degrade any

aspect of environmental quality. If the Court finds that

the project may cause a significant degradation of some

human environmental factor, the Court should require

the filing of an impact statement.” Save Our Ten Acres v.

Kreger, 472 F.2d 463, 466-67 (5th Cir. 1973). This Court is

not persuaded by the rationale that every finding of

significant degradation of some human environmental

factor automatically calls for an EIS. Instead, this Court

holds that there are some instances where degradations

to the environment can be, and are, adequately studied in

an environmental assessment. Rather than automatically

remand to the agency involved whenever significant

environmental degradation is at issue, this Court deter-

mines its duty to be a review of the agency decision to

determine whether the Corps has taken a “hard look” at

the environmental consequences. Kleppe v. Sierra Club,

427 U.S. 390, 410, n. 21 (1976). Determining whether the

39a

agency has taken a “hard look” at the environmental

factors will involve different considerations for each case,

but under Tenth Circuit law, the agency’s determination

will be valid if the agency made a “good faith, objective

effort” to comply with NEPA’s procedural requirement.

Jette v. Bergland, 579 F.2d 59 (10th Cir. 1978); National

Helium Corp. v. Morton, 486 F.2d 995 (10th Cir. 1973);

Manygoats v. Kleppe, 558 F.2d 556, 560 (10th Cir. 1977).

Therefore, the Court can find, as ** does here, that

some environmental degradation .ecting the human

environment will undoubtedly «ccur if the Montafio

Bridge is built, without being forced to find that an EIS is

automatically required.

Therefore, the question before the Court with respect

to this issue of the adequacy of the EA is two-part. First,

whether the Corps took a “hard look” at the environmen-

tal consequences in a good faith, objective effort to com-

ply with the requirements of NEPA. Second, whether the

Corps’ decision is adequately supported by the record.

a. Effects of the Bridge Construction on the Bos-

que.

Plaintiffs assert that the Corps inadequately assessed

and analyzed the effects of bridge construction on vegeta-

tion, the cottonwood forest and wildlife species which

make up the Bosque.! This Court is not persuaded that

the Corps failed to meet its burden. The parties agree that

the construction of the bridge will involve the destruction

1 “Bosque” is the Spanish word for forest.

40a

of approximately four acres of Bosque, and will split the

Bosque into two roughly equal parts, approximately 400

and 455 acres respectively. In its analysis, the Corps has

made consistent references to the effects of the construc-

tion and has included several special conditions to miti-

gate those effects. A review of the EA and administrative

record shows that the Bosque was discussed in various

contexts and that virtually all impacts on wildlife and

vegetation were considered. Several of the thirteen per-

mit conditions protect the Bosque from unnecessary dam-

age and provide for mitigation of those effects that are

unavoidable. EA at 46-47. Special Condition 5 states that

“destruction of bosque shall be avoided as much as possi-

ble during construction.” EA at 46. Special Condition 7

requires revegetation of disturbed Bosque. EA at 46. Spe-

cial Condition 10 requires mitigation for the four acres of

Bosque lost due to the bridge approachways and right-of-

way corridor. EA at 47. In the EA the Corps determined

that even though habitat loss is minor (0.04% of the 60-

mile stretch of Bosque from Bernalillo to Belen. EA at 25),

“due to its scarcity in the region and its ecological value,

it should be mitigated to lessen the loss of habitat avail-

able for wildlife and to provide new or increased-quality

areas for displaced individuals.” EA at 11. Special Condi- —

tion 10 requires the City of Albuquerque to acquire “not

less than four acres of private riparian or wetland Bosque

within the Albuquerque reach of the Rio Grande.” The

District Engineer must approve the lands designated for

mitigation. In addition, the plan for management of the

mitigation lands must be coordinated with other

resources and agencies and approved by the District

Engineer prior to the start of construction. EA at 47.

4la

In addition, the Corps had use of the ecological study

of the riparian corridor of the Middle Rio Grande which

emphasized the Bernalillo to Belen reach. This final

report (Hink and Ohmart 1984) is referenced and quoted

throughout the EA. EA at 10-12. See also AR Vol. XIII.

Based on the evidence in the record and the EA, the

Court finds that the Corps has met its burden on this

issue in that it adequately studied the effects of bridge

construction on the Bosque.

(b) Noise Impacts.

Plaintiffs allege that the Corps failed to adequately

consider noise impacts to the area surrounding the bridge

site because they did not obtain new information on noise

or independently verify the information relied on and

challenged by the plaintiffs. The Corps acknowledges

that it relied on the FEIS done by the FHWA in its

determination of noise impacts. However, a review of the

EA and the record indicates that the Corps updated and

made allowance for changes not reflected in the FEIS.

Specific references to the noise studies are found in the

EA at pp. 1, 13, 16, 18, 24, 25, 35-37 and 41. The record

also contains reference to the noise studies at AR Vol. III

at 283; AR Vol. VI at 871-73; and AR Vol. XI at 39d-41.

The EA also incorporates measures which must be

undertaken to mitigate noise including a “prohibition of

heavy commercial vehicles between Coors Boulevard and

Fourth Street, construction of noise walls, a depressed

roadway section and provisions for pedestrians and bicy-

clists to allow low-noise alternative transportation

modes.” (Parks, 1986c, Responses, p. 64). EA at 16; AR

42a

Vol. IV at 443; Vol. VI at 871-73; Vol. X at 49; Vol. XI at

39d-41.

Both the EA and the record reflect that the Corps has

therefore adequately studied and documented the noise

impacts of the project.

Plaintiffs claim that the EA fails to include an ade-

quate discussion of the impacts on air quality resulting

from the proposed Montafio Project. The record indicates

the Corps’ conclusion that building the bridge would

have a positive effect on air quality by lowering overall

carbon-monoxide emissions due to reduced traffic con-

gestion. The Court’s role is not to determine the veracity

of these statements but to ascertain that there is some

reasoned basis for them. The Corps has provided that

basis which is found at the EA pp. 15, 24; AR Vol. II at

93-104 (Gerety, Report on Air Quality Impact of New

North Valley River Crossings); Vol. VI at 834-45; Vol. VI at

921; Vol. XI at 36-39; Vol. XII at 61; Vol. XIV, Tab B.

Again, this issue was properly and thoroughly

treated by the Corps. ,

(d) Traffic Flows.

In indirect response to the plaintiffs’ charge that the

EA does not fully disclose the traffic impacts along Rio

Grande Boulevard, Griegos Road and other secondary

and residential streets throughout the North Valley of

Albuquerque, the Corps states that it is not required to

consider the impacts of non-federal activities. This argu-

ment is based on a reading of Winnebago Tribe of

Nebraska v. Ray, 621 F.2d 269, 272 (8th Cir. 1980) where

a a

43a

the court held that the Corps was not required to con-

sider environmental impacts posed by an entire transmis-

sion line, but only those parts of the line which affected

navigable waters.

Nonetheless, the Corps does state in the EA that

“traffic volumes on these local streets are expected to

increase due to the loss of an at-grade intersection at

Montafio Rd. and Rio Grande Blvd. . . . [further] the

applicant intends to monitor residential traffic and imple-

ment mitigation measures as necessary.” EA at 21. The

Court has found only one other reference in the record to

traffic flow impacts on secondary streets. City’s

Responses to Written Comments, December 1986, p. 20.

This response in full is that:

[i]f it is determined that traffic is funneling

through the neighborhood after the Montano

Crossing has been built to the point of disrupt-

ing community life, then measures will be taken

to discourage such travel patterns by installing

traffic control devices and diverters to make

such travel undesirable. (Att. 8, p. 20)

In Foundation on Economic Trends v. Weinberger,

610 F. Supp. 829 (D.D.C. 1985), the court states that an EA

which fails to address a significant environmental con-

cern is an inadequate basis for a reasoned determinatio

that an EIS is not appropriate.

When taking the requisite hard look at the envi-

ronmental concern, the agency must provide, in

the EA, more than a “checklist” of assurances

and alternatives. It must indicate, in some fash-

ion, that the agency has taken a searching, real-

istic look at the potential hazards and, with

44a

reasoned thought and analysis, candidly and

methodically address those concerns.

610 F. Supp. at 841. The Corps’ incorporation of the AR,

and the City’s promise to monitor traffic flows should

they become a problem, is simply not an adequate basis

to support their contention that they have acted within

the expectations of NEPA. Speculation that the City will

deal with a traffic problem is not “reasoned analysis.”

Furthermore, an after-the-fact solution to the problem of

secondary or residential traffic flows cannot be what the

framers of NEPA, a prescriptive procedural statute, had

in mind. In the absence of any other information which

would tend to support the Corps’ actions on this issue,

this Court is required to find that the Corps’ analysis of

the impacts of greater traffic flow on the residential

neighborhoods is inadequate.

The Corps’ contention that it is not responsible for

this analysis is treated below in the discussion of

“improper segmentation” of the Bridge and Corridor Pro-

jects.

(e) Secondary Land Use Impacts.

The plaintiffs’ fifth allegation under the first claim is

that the Corps did not adequately: discuss any of the

secondary land use impacts implicated by construction of-

the bridge. The Court is hard pressed to discern the

precise nature of this claim. Plaintiffs cite Davis v. Cole-

man, 521 F.2d 661, 674 (9th Cir. 1975) in support of the

assertion that growth, increased population, traffic, pollu-

tion and demand for services are factors that should be

considered by the Corps. As noted above, traffic and

pollution are issues specifically raised by the plaintiffs

45a

elsewhere. The population growth of the west side is

exhaustively treated throughout the record and EA, and

is, in fact, the basis for the assumed need for the bridge.

Thus, “growth” and the increased demand for services

are the only issues which it can be fairly alleged the

defendants did not consider.

Again, the task before the Court is to determine

whether the Corps’ analysis of these issues is reasonable.

This Court accepts the Corps’ definition of growth as a

phenomenon which is susceptible to subjective inter-

pretations which are dependent on a person’s outlook on

development generally. “People who support develop-

ment view these increases as a positive impact; those who

are anti-development see the increases as a negative

impact:. . . some adverse secondary impacts . . . are

unavoidable.” EA at 24. On that same page, the Corps

discusses additional secondary impacts in detail. Given

the subjective nature of the problem, and the City’s

expressed preference for the crossing, the Court finds no

basis for holding that the Corps’ actions are unreason-

able. The effects of growth are considered and cata-

logued, and the plaintiffs’ distaste for that growth is not a

basis for requiring an EIS.

(f) Impacts on Historic Resources.

NEPA regulations state that the significance of an

action requires consideration of its intensity, and that an

evaluation of intensity should include the following:

Unique characteristics of the geographic area

such as proximity to historic or cultural resour-

ces. . . . The degree to which the action may

46a

adversely affect districts, sites, highways, struc-

tures or objects listed in or eligible for listing in

the National Register of Historic Places or may

cause loss of [sic] destruction of significant, cul-

tural or historic resources.

40 C.F.R. § 1508.27(b). The New Mexico State Historic

Preservation Officer has found that the proposed bridge

construction will have an adverse effect on the Los

Poblanos Historic District and the John F. Simms House,

which are all eligible for the National Register of Historic

Places (Att. 5, pp. 16-17).

However, the State Historic Preservation Officer,

(“SHPO”) also consulted with the Corps in order to

develop plans to mitigate the effects that the project

would have on the known and unknown historic sites.

Pursuant to that consultation, the Memorandum of

Understanding between the SHPO and the Corps incor-

porates several mitigative measures. This consultation

process, and the documentation of it, is evidence to the

Court that the Corps actually considered the effects of

construction on historic sites. The existence of the mit-

igating plans indicate that a thorough analysis was done

and, that to the extent possible, adverse consequences

were minimized.

The Corps has therefore met the burden established

by NEPA on this issue.

(g) Impacts on Dietz Farms.

The plaintiffs have alleged that the Corps of Engi-

neers failed to adequately assess the impacts of the

bridge construction on the semi-rural residential neigh-

borhood known as Dietz Farms. This neighborhood abuts

47a

the bridge right-of-way to the south, and the Corps

acknowledges that the “bridge structure and roadway

area will be partially visible from the Dietz Farms resi-

dential area.” AR Vol. 1, Tab B, p. 13. However, the

plaintiffs acknowledge that the Corps has again provided

for mitigating measures which would require planting

supplemental trees along the right-of-way and building a

six-foot adobe colored noise wall to shield the view. It

appears that the plaintiffs’ real dispute is not that the

Corps didn’t adequately study the corridor, but that the

Corps came up with mitigative measures that didn’t go

far enough. Whether the latter is true is a question within

the substantive realm of consideration of the agency

which this Court will not, and cannot, tread upon.

(Strycker’s Bay, supra).

It cannot reasonably be said that the Corps’ analysis

of the bridge project’s impact on the entire area surround-

ing the site did not include a study of the impact on Dietz

Farms. The Permit Evaluation and Decision Document

found at AR Vol. I, Tab B, includes references to the

neighborhoods and suggestions for mitigating measures.

The plaintiffs’ contentions that the trees might not sur-

vive after construction is simply speculation which does

not form a basis for holding that the EA is inadequate.

The Court thus finds that the Corps has met its burden on

this issue.

(h) Impacts of Montafio Corridor Improvements.

The plaintiffs’ allegations on this issue are substan-

tially related to their Claim No. 3 which charges that the

Corps improperly segmented the analysis of the Montafio

48a

Project. The Court will defer discussion of impacts of the

corridor improvements to the analysis of Claim No. 3.

In summary, the plaintiffs’ averments under Claim

No. 1 are insufficient to establish that the Corps did not

adequately study or analyze the environmental effects of

the bridge project, with one exception. The EA contains

an adequate statement of the work that the Corps has

done and relied upon in reaching its conclusions, but for

the discussion of traffic flows on the residential or sec-

ondary streets. As noted, the Corps’ need to consider

secondary traffic flows is treated further in the “segmen-

tation” analysis.

Analysis of Claim No. 2

Did the Corps fail to adequately assess alternatives to

the Montario Site/ Project?

In their Trial Brief and Motion for Preliminary Injunc-

tion, the plaintiffs have listed two separate alleged infir-

mities in regard to the Corps’ alleged decision not to

study alternatives to the Montafio site. The plaintiffs rely

on Sierra Club v. Alexander, 484 F. Supp. 455 (N.D.N.Y.

1980) and Richland Park Homeowners Ass’n., Inc. v.

Pierce, 671 F.2d 935 (5th Cir. 1982) in support of the

averment that the Corps has an affirmative obligation to

consider alternatives to a proposal which exists indepen-

dent of any duty to file an EIS. Relying on the existence of

this independent duty, the plaintiffs urge that the Corps

should have studied less environmentally egregious alter-

natives regardless of the*City’s position on those alterna-

tives. On a related note, the plaintiffs argue that the

49a

alternatives which the Corps must consider are not lim-

ited to those within the jurisdiction of the applicant.

Secondly, the plaintiffs argue that the Corps failed to

do an independent analysis, which is mandated by NEPA,

with regard to information it received from the applicant.

Finally, plaintiffs rely on the principle expressed in the

case of Trinity Episcopal School Corporation v. Romney,

523 F.2d 88 (2nd Cir. 1975), where the Second Circuit held

that when a federal agency’s search for, or investigation

of, alternatives “ . . . was either highly limited or non-

existent, remand was required so the agency could study

possible alternatives.” 523 F.2d at 95.

The relevant factual background is that the Corps

chose not to study alternative sites, variously designated

“La Cueva,” “Roy,” “Candelaria,” “I-40,” etc., because the

City determined that the only feasible location for the

bridge crossing, and indeed the preferred alternative, was

the Paseo del Norte (Paseo) and Montafio crossing combi-

nation. This pre-selection by the City, and specifically the

Corps’ reliance on it, in deciding to extensively study

only the Montafio and Paseo crossings, is alleged by the

plaintiffs to be unlawful and not in the spirit of NEPA.

In its defense, the Corps replies that:

there are no reasonable alternative methods or

locations available to the applicant to accom-

plish the purpose of the proposed project. The

applicant has reduced the scope of [the] project

as much as possible to minimize impacts to the

aquatic ecosystem. EA, 44.

Widening the Alameda (Corrales) Bridge is not

an alternative that is available to the applicant,

the City of Albuquerque. The Alameda Bridge is

{

;

}

50a

outside the Albuquerque city limits and the

right-of-way is owned by the State Highway

Department. EA, 4. In addition, the Urban

Transportation Policy Planning Board did not

select Alameda expansion. EA, 4. The Alameda

Bridge is not located where additional river

crossing lanes are needed because 88% of all

projected river crossing begin or end south of

the Paseo del Norte and the Alameda site is

north. EA, 5. The Montafio Project is south of

Paseo del Norte. Finally, it is uncertain whether

the widening of the Alameda Bridge could be

accomplished without environmental harm. EA,

4. If so, the project could not be accomplished in

the near future. EA, 4. Other sites were consid-

ered. EA, 3-5. Federal Defendants’ Response to

Plaintiff's Motion for Preliminary Injunction,

pp. 8-10.

The FEIS was also reviewed and is Volume XI of the

Administrative Record. Several alternate sites for build-

ing a bridge were analyzed in the FEIS. EA at 3. Thus,

there is substantial evidence in the administrative record

that alternative sites were fully explored.

The Clean Water Act regulations in regard to § 404

permits provide that:

No discharge of dredged or fill material shall be

permitted if there is a practicable alternative to

the proposed discharge which would have less

adverse impact..on“\the aquatic ecosystem, so

long as the alternative does not have other sig-

nifcant adverse environmental consequen-

ces. . . . Am alternative is practicable if it is

available and capable of being done after taking

into consideration cost, existing technology, and

logistics in light of overall project purposes. If it is

5la

otherwise a practicable alternative, an area not

presently owned by the applicant which could

reasonably be obtained, utilized, expanded or

managed in order to fulfill the basic purpose of

the proposed activity may be considered.

(emphasis added).

7 Taking the mandates of these cases and the statutory

language into account, the Court must begin with the

presumption that failure to consider any practical alterna-

tives, even though they are not recommended by the

applicant, is fatal to the Corps’ decision not to prepare an

EIS. However, this Court finds that none of the alterna-

tives \vailable, or mentioned by the plaintiffs, is reason-

able, practicable or capable of completion by the

applicant. Therefore, the Corps acted properly in decid-

ing not to engage in further study of those alternative

sites. The alternatives and their constraints are found in

the FEIS, referenced in the EA, and listed below:

Alternative Constraint

Candelaria Crossing Environmental - would cut

through an oxbow marsh

wetland and a nature preserve.

Griegos Crossing Social - would require

relocation of several families

and impact a nearby

elementary school.

Economic — the right-of-way

required would pass through a

densely settled area.

Chavez Crossing

Ranchitos Crossing

Roy Avenue Crossing

Alameda (Corrales)

Crossing

No Build Alternative

Montano/Paseo Del

Norte

52a

Social -— relocation of families.

Economic — no through

connection from Coors Blvd.

Relocation necessary in densely

developed area. Narrow right-

of-way on existing facility.

Social — junior high school on

proposed roadway, relocation

of several families.

Economic - no existing right-of-

way to I-25.

Geographic — this is the

northernmost alternative and

has the least potential for

mitigating traffic congestion.

Geographic — this site is outside

of the City’s jurisdiction.

Social and Economic - given

projected traffic demands this

is untenable. All traffic studies

indicate a need for additional

river crossings.

This is the preferred

alternative.

As the Seventh Circuit has made clear “the Corps is

entitled not to conduct a further study of alternatives

unless the plaintiffs [are] prepared to shoulder the bur-

den of showing that [the applicant] has overlooked some

plausible alternative site... . ” River Road Alliance v.

Corps of Engineers of the U.S. Army, 764 F.2d 445, 452

(7th Cir. 1985). Although this Court feels that alternatives

for accomplishing the overall goal probably exist, the

53a

Court’s role is only to assure that the Corps properly

studied plausible alternatives. The Corps has taken into

consideration all of the alternatives listed above, includ-

ing the impractical ones, and chosen to focus on the most

workable bridge site - Montafio Road. This Court cannot

find fault with this decision as it seems unrealistic to

require that the Corps study implausible alternatives.

The plaintiffs’ second contention in Claim No. 2 is

that the Corps failed to independently verify information

provided to it by the applicant in regard to alternative

sites. In Sierra Club v. Alexander, supra, a case substan-

tially relied on by the plaintiffs, the district judge found

that where substantial materials on alternatives were pre-

sented by the applicant, and a comprehensive review of

the project and alternatives was performed by an inde-

pendent agency, the Corps’ obligation to independently

investigate alternatives “could reasonably be found to be

much less substantial than might otherwise be the case.”

484 F. Supp. at 469.

As for the present case, a great deal of material was

presented by the applicant which covered every con-

ceived of alternative and the reasons for rejection of those

alternatives. In addition, the project and the alternatives

were evaluated in the FEIS by the Federal Highway

Administration. Moreover, the Corps relied on public

commentary and its own review of the material submit-

ted by the applicant. These combined studies and efforts

indicate to this Court that the Corps accomplished its

mission of independently analyzing the material pre-

sented by the applicant. Therefore, it is the Court's judg-

ment that the NEPA regulations and guidelines have been

54a

followed and that the plaintiffs’ second claim does not

provide a basis for a preliminary injunction or remand.

Analysis of Claim No. 3

Did the agency improperly segment the Montario

Crossing Project from the Montafio Corridor improve-

ments?

In their Memorandum in Support of Motion for Pre-

liminary Injunction, the plaintiffs assert that an environ-

mental assessment is inadequate if it fails to discuss the

full, cumulative and synergistic effects of inter-related

projects because planners have improperly segmented

proposals and prevented adequate disclosure of the envi-

ronmental impacts of the project as a whole. Highland

Cooperative v. City of Lansing, 492 F. Supp. 1372, 1382

(W.D. Mich. 1980). Plaintiffs argue that the Corps vidlated

NEPA guidelines and its own regulations by improperly

segmenting the Montano Bridge Crossing from the Mon-

tano Corridor improvements. (The Corridor improve-

ments consist of widening and regrading Montano

Boulevard on either side of the proposed bridge in order

to accommodate projected traffic increases). Although the

Montano Project includes corridor improvements and the

crossing, plaintiffs argue that the EA only discusses the

environmental impacts of the bridge component of the

project. Relying on Fritiofson v. Alexander, 772 F.2d 1225

(Sth Cir. 1985), the plaintiffs argue that any proposal

which is functionally related must be evaluated in the

same environmental analysis.

55a

This Court is not persuaded to accept this expansive

reading offered by the plaintiffs. The only activity in this

entire project which requires a § 404 permit is the con-

struction of the bridge along the Montafio Road align-

ment between Coors Road on the west and Rio Grande

Boulevard on the east. As this Court held in its ruling on

the Motion for Protective Order, the Corps’ jurisdiction

with regard to this project extends only to that area

within the bounds of the permit application. While it is

true that the City will widen the Montafio Corridor, it is

also apparent from the record that those improvements

will proceed whether or not the bridge is built. EA at 22.

Thus, this Court is persuaded that building the bridge

and widening Montafio Road are separate and indepen-

dent projects and that Corridor improvements have inde-

pendent utility for the City.

In reaching this conclusion, the Court has relied sub-

stantially on the recent case of Sylvester v. U.S. Army

Corps of Engineers, et al., No. 88-15376 (9th Cir., March

27, 1989). There, the Ninth Circuit undertook an extensive

analysis of the plaintiff’s challenge to the Corps’ decision

not to require an EIS where the Corps segmented the

building of a golf course from the building of a surround-

ing resort. In that case, NEPA was implicated because

construction of the golf course required filling some wet-

land area. The Corps determined that it need not study

the impacts of the entire resort because the developers

plan to build the golf course did not “federalize” the

entire resort complex. Although the golf course and sur-

rounding resort were geographically intertwined, the

Corps fixed the scope of its analysis based on the jurisdic-

tional limitation inherent in the permit.

56a

The district court which first heard Sylvester granted

a preliminary injunction but, on review, the Circuit

vacated the injunction and held as follows. First, that the

Corps must follow its own regulations when determining

how to comply with the NEPA. Second, that the District

Engineer should establish the scope of the NEPA docu-

ment (e.g. the EA or EIS) to address the impacts of the

specific activity requiring a permit and should limit the

permitting process to those portions of the project over

which the District Engineer has sufficient control and

responsibility to warrant federal review. Third, that the

District Engineer has control and responsibility where

federal involvement is sufficient to turn an essentially

private action into a federal action. Fourth, that one factor

to be considered in determining control and respon-

sibility is whether or not the regulated activity comprises

“merely a link” in a corridor-type project. Having set out

the applicable standard, the Ninth Circuit then found that

the Corps analyzed the secondary and cumulative

impacts of the course and properly determined that other

resort facilities were unrelated. The court reasoned that

the resort might easily succeed without the golf course

thereby tacitly affirming those cases which hold that

where independent utility is apparent, federal control

cannot be assumed. See, e.g. Friends of the Earth v.

Hintz, supra and Enos v. Marsh, 769 F.2d 1363 (9th Cir.

1985).

In the case at hand, it is clear that the Montano

Corridor improvements might easily be accomplished

without the construction of the Montano Bridge. To that

57a

extent, the federal government would have no jurisdic-

tion over improvements to the Corridor. The act of build-

ing the bridge, and the Corps’ act of granting the permit,

are not sufficient to “federalize” the entire Corridor Pro-

ject. The Corps of Engineers has followed its own regula-

tions in regard to the permit, has limited the scope of its

review properly under the CEQ and NEPA guidelines,

and has determined that the road widening is not a

federal project. Where the construction in question is not

federal, the Corps is not required to consider the environ-

mental impacts of that construction. Winnebago Tribe of

Nebraska v. Ray, 621 F.2d 269, 272 (8th Cir. 1980) and

Save the Bay, Inc. v. U.S. Corps of Engineers, 610 F.2d

322, 326 (Sth Cir. 1980). This Court is therefore persuaded

that the Corps’ determination not to look at the environ-

mental impacts of Montafio Corridor improvements is not

fatal to their decision to proceed on the basis of an EA,

and that the Corps’ decision was reasonable. The Court

will now answer the question left open in its discussion

of traffic flows.

As noted above, the Corps’ analysis of traffic flows

on residential streets does not withstand the scrutiny

required by NEPA. However, secondary traffic flows, like

corridor improvements, are outside the scope of the § 404

permit. None of the alleged traffic flow impacts impinge

on acreage within the permit bounds. Nor does the Corps

have substantial control over the City’s means of dealing

with these potential traffic flow problems. Therefore,

despite the inadequacy of the study on this issue, the

Court must find that Corps’ actions constitute harmless

error. Therefore, plaintiffs’ Claim No. 3 is insubstantial as

a basis for remand or preliminary injunction.

58a

Analysis of Claim No. 4

Did the Corps improperly fail to designate the Bos-

que as wetlands?

Central to this lawsuit, and the controversy over the

Montano Bridge Project, is the certain destruction, if con-

struction is to continue, of wooded and grass-covered

land adjacent to the Rio Grande between the Corrales

riverside drain on the west and the Albuquerque drain on

the east. The plaintiffs argue that this area of land should

be designated a wetland which the Corps has chosen not

to do. As the plaintiffs have correctly noted, wetlands are

a particularly fragile and important part of the national

environmental ecosystem. Because of this, they are speci-

fically protected by § 404 of the Clean Water Act. In

considering effects on wetland property, federal agencies

are directed to cooperate with one another and consider

the project’s effects on all natural systems contained

within the wetland area. This particular issue has arisen

because the Corps, the EPA and the Fish and Wildlife

Service have at various times set forth different criteria

and standards for classifying wetlands. Furthermore, the

FEIS submitted to the Corps, and prepared by the Federal

Highway Administration, initially determined that the

entire Bosque should be classified a wetland.

Once again, this Court will reiterate its objective to

review the procedural constraints imposed by NEPA and

not interfere with substantive determinations made by

the federal agency in question. Phrased in terms of speci-

fic alleged defects, the plaintiffs’ argument is that the

Corps failed to interact with other agencies when it deter-

mined that the Bosque area impacted by the Montafio

59a

Project was not a wetland. Secondly, the plaintiffs argue

that a determination that the affected area was not wet-

land is in direct contrast to the prior determination by the

FHWA that the whole Bosque is a wetland.

The administrative record indicates that the Corps

followed its own procedures in determining whether the

area impacted by the Bosque was a wetland. Andy Rose-

nau, chief engineer of the regulatory branch, and Jean

Manger, a biologist in the regulatory branch, visited the

proposed bridge site. AR, Vol. II at 72. Ms. Manger also

reviewed and studied the prior FEIS which appears in the

administrative record and has been incorporated by the

Corps in its EA. The Corps also had the benefit of the

Hink and Ohmart study, done for the Federal Highway

Administration, which is an extensive and costly docu-

ment that outlines in detail the various riparian habitat

found along both sides of the river corridor. AR at Vol.

XIII. Furthermore, the Court evaluated existing data on

the region which included U.S. Geologic Survey maps

and National Wetland Inventory maps. The Corps pre-

pared its own aerial photography and performed its own

field studies of the vegetation, soils and hydrology. The

end result of these various studies was the Corps’ deter-

mination that certain parts of the Bosque are wetlands,

but that none of those wetland areas were impacted by

the construction of the bridge. This finding is consistent

with the study conducted by Drs. Hink and Ohmart.

While it is true that there is still some debate as to

whether the Corps’ determination of wetland is substan-

tively accurate, this Court cannot say that the determina-

tion is unreasoned or arrived at in an arbitrary and

capricious fashion. Therefore, the Corps’ decision not to

60a

designate the affected area as wetland will not substanti-

ate the plaintiffs’ claim that an EIS should have been

done on this particular project.

Analysis of Claim No. 5.

Were the requirements of the Fish and Wildlife Coor-

dination Act met?

The plaintiffs have argued that the Fish and Wildlife

Service is required, pursuant to the Fish and Wildlife

Coordination Act, 16 U.S.C. § 661 et seq., to make recom-

mendations to the Corps on the wildlife aspects of a § 404

permit. These recommendations are to be as specific as

possible and to describe the damage to wildlife attributa-

ble to the project in question.

If construction is to occur at the Montafi site,

approximately four acres of Bosque will be permanently

and unavoidably lost by the bridge approachways and

right-of-way corridor. AR, Vol. I, Tab B at p. 11. Through

a series of letters, the Field Supervisor of the Fish and

Wildlife Service informed the Corps’ District Engineer

that varied and serious impacts on wildlife which reside

in and around those four acres will occur. This impact is

not disputed by the Corps. However, the Corps points

out that the Field Supervisor of the FWS suggested to the

Corps a series of mitigating measures which the Corps

should follow in issuing its permit. It is apparent from a

review of the permit that the mitigating factors suggested

by the FWS were incorporated and made special condi-

tions of the permit. This is determined by comparing the

series of letters from the Field Supervisor to the special

conditions in the permit, specifically conditions three,

6la

five, six, seven, ten, eleven and twelve. AR, Vol. I, Tab A

at 2, 4. It appears that the Fish and Wildlife Service had

no objections to the issuance of the permit in addition to

those covered by the mitigation requirements. It is there-

fore clear to this Court that the Corps requested and

received the input of the Fish and Wildlife Service and

followed its recommendations. Further, plaintiffs’ sugges-

tion that the FWS should have recommended the no build

alternative is of little merit, since this is a matter left to

the discretion of the FWS Filed [sic] Supervisor. Plaintiffs

cannot prevail on this claim since it appears that the

Corps has consulted with the FWS and come to a rea-

soned conclusion as to the nature of the impact on the

immediately affected Bosque area.

Analysis of Claim No. 6

Was the Corps’ decision to grant the § 404 permit

based on the EA, and not an EIS, arbitrary and/or capri-

cious?

As the foregoing analysis demonstrates, on virtually

every challenge submitted by the plaintiffs, the Corps is

able to document, from the administrative record, its

study of various impacts of the Montajfio Project. It does

not appear from the record that the Corps intentionally

neglected study of any specific area or impact, nor does it

appear from the record that the Corps specifically

excluded studies which were contrary to its findings. In

several regards, the Corps made decisions which are dis-

puted by various individuals and groups, but those were

substantive decisions which this Court is not bound to

review. It does not appear from the record that the Corps

62a

was unreasoning or less than thorough in its study of the

project.

The sole exception to this finding is the Corps’ lack of

study of the impacts on secondary and residential streets

caused by the construction of the bridge. As stated above,

the Corps’ lack of analysis of this single, and tangential,

impact is not of sufficient import to require that a prelim-

inary injunction be granted. Secondary traffic flows are

but one factor, and a small one at that, in the overall

scheme of this project. Moreover, the analysis of those

impacts is outside the jurisdiction of the Corps.

On balance then, this Court cannot find that the

Corps’ decision to grant the permit was either arbitrary

and capricious or unreasonable. Therefore, the plaintiffs

have not established a substantial likelihood that they

will prevail on the merits of this claim. Although this

Court might disagree with the decision to construct the

bridge on the preferred site, the Corps’ analysis of the

project is adequate and fulfills the various requirements

of NEPA and the Clean Water Act.

PART II

The second requirement under the preliminary

injunction test is whether the movant will suffer irrepar-

able injury. This Court concludes that irreparable injury

will certainly accrue if construction is allowed to proceed.

Testimony at the Temporary Restraining Order hearing

held in early April, and the subsequent evidentiary hear-

ing established that the City is in the ongoing process of

condemning land and letting contracts. That the City will

63a

proceed with construction of the bridge absent an injunc-

tion is certain.

It is also beyond doubt, and admitted by all parties,

that construction will cause irretrievable damage to the

affected Bosque site. Rights-of-way will be cleared, trees

will be uprooted and the act of cutting a corridor through

the Bosque will bring about the predicted environmental

harms. Given these factors, a finding of irreparable injury

is compelled.

PART III

The Tenth Circuit has stated that the movant must

show that the injury prevented by granting an injunction

will not be outweighed by the harm caused to the non-

movant. Lundgrin v. Claytor, supra. The Court finds that

the plaintiffs have not met this burden.

The testimony in this case is to the effect that delays

in commencement of bridge construction will cause the

City to have to re-bid the construction contracts thereby

undoing the work the City has already accomplished in

selecting the contractor.

Further argument established that construction

delays will exacerbate traffic conditions by causing addi-

tional congestion due to the ever-increasing number of

commuters from the west side. The Court will take judi-

cial notice of the common sense proposition that more

traffic means more accidents and hazards to the public,

and that delays implicate questions of public safety. For

these reasons, the balance of the equities weighs in favor

of the defendants.

64a

PART IV

The final test in determining whether to grant a

preliminary injunction is whether the injunction, if

issued, would be adverse to the public interest. The Court

finds that an injunction would be adverse to the public

interest and therefore finds that the plaintiffs have not

met their burden on this final test. In coming to this

conclusion, the Court has carefully balanced the needs of

the Albuquerque metropolitan area, as described in traffic

flow analyses, projections for future growth, and the

decisions of elected representatives, against the environ-

mental consequences of this action and the opposition to

the Montario Project from citizens and residents who will

be impacted by the construction and assumed eventual

completion of the Project. The Court would note that in

balancing these positions, an exceedingly complex array

of issues has arisen. These issues range from the protec-

tion of skinks and whiptail lizards to questions regarding

impacts on an entire City’s character and future develop-

ment. While this conclusion has not been particularly

easy for the Court to reach, on balance the transportation

and growth needs of the City, as expressed by its resi-

dents in their continued support of bond allocations for

the construction of the bridge, outweigh the various det-

riments which will be caused by the Project. For these

reasons, an injunction would be more detrimental to the

public interest than would this Court’s refusal to enter

such an injunction thereby allowing construction to pro-

ceed.

The Court is not persuaded that the Corps acted in a

hasty or unreasonable manner, nor is it persuaded that a

further and more elaborate study which might encompass

65a

every single conceivable detail concerning the impacts of

this project would substantially benefit residents of the

City of Albuquerque. Therefore, it is this Court’s decision

that the plaintiffs have not met their burden with regard

to part four of the preliminary injunction test.

CONCLUSION

The grant or denial of a preliminary injunction is

within the discretion of the trial court. Continental Oil

Co. v. Frontier Refining Co., 338 F.2d 780 (10th Cir. 1964).

The plaintiffs in this case have met their burden on only

one of the four tests established by the Tenth Circuit -

irreparable injury. As noted above, the plaintiffs might

still prevail, absent a showing of substantial likelihood of

success on the merits if the balance of hardships tips

decidedly in their favor, and the issues raised are so

serious, substantial, difficult and doubtful as to make

them a fair ground for litigation. Id. at 781 (emphasis

added). Here, however, the balance of hardships weighs

in favor of the defendants, and it is not substantially

likely that the plaintiffs will prevail at the trial on the

merits. Finally, since the interests of the public are best

served by denying the injunction, the Court has no alter-

native but to act accordingly.

Based on the foregoing discussion, a review of the

memoranda of the parties, the evidence offered to the

Court, closing arguments of counsel, and a review of the

applicable law, the Court finds that the Motion for Pre-

liminary Injunction which would enjoin construction of

the Montario Bridge Project is not well-taken and should

66a

be denied. An Order in conformance with this conclusion

will be entered by this Court of even date.

DATED this 26th day of May, 1989.

/s/ John E. Conway

UNITED STATES DISTRICT JUDGE

67a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

VILLAGE OF LOS RANCHOS DE

ALBUQUERQUE, et al.,

Plaintiffs,

vs. No. Civ. 88-1032JC

LT. GENERAL HENRY J. HATCH,

et al.

Defendants.

MEMORANDUM OPINION AND ORDER

(Filed May 11, 1989)

This matter is currently before the Court on the

Defendant’s Motion to Compel Immediate Depositions,

filed May 9, 1989. Having reviewed the most recent mem-

oranda of the parties, the record, and the applicable law

the Court finds that the defendants motion is well taken

and will be granted in accordance with the restrictions

outlined below.

A review of the case file indicates that the recent

flurry of eleventh hour activity is due largely to the

parties failure to conduct discovery in an orderly manner.

The Complaint in this cause, alleging that, the Corps of

Engineers improperly issued a §404 permit under the

Clean Water Act, 33 U.S.C. §1344, was filed on August 29,

1988. No attempt at discovery was made by either party

until March 2, 1989 when the plaintiffs Noticed the depo-

sitions of four individuals. There is no reason that these

depositions could not have been noticed soon after the

defendants filed their Answer. This five month delay is

inexcusable. On March 9, the the [sic] plaintiffs filed a

68a

certificate of service for Plaintiffs First Set of Interrogato-

ries. This first set of interrogatories became the subject of

the federal defendant’s Motion for Protective Order,

dated March 17, 1989. The basis for the Motion for Protec-

tive Order was that any review of the Corps of Engineers

decision to grant the §404 permit was limited to the

administrative record, and was therefore not appropriate

for additional discovery.

In its Order of May 8, 1989, this Court ruled that of

the five claims for relief enumerated by the plaintiff, only

the claim which questioned the Corps of Engineers anal-

ysis of the impact on the Bosque of “fracturing” was

susceptible to the possible admission of evidence outside

of the administrative record. For the purpose of deter-

mining whether such additional evidence is indeed

appropriate, the Court has set a very limited evidentiary

hearing in conjunction with the preliminary injunction

hearing. “The sole purpose of the evidentiary hearing

will be to hear proffered testimony on the issue of the

Corps of Engineers analysis of the impact of fracturing

on the Bosque.” Order of May 8, 1989 at pg. 15, (emphasis

added).

The fracturing issue is restricted to two questions.

First, in conducting their analysis of the environmental

impact of the Montano Project, did the Corps improperly

divide the Bosque into two segments, then study the

segments individually, thereby improperly assessing the

impact if the project on the Bosque as a whole? Second, if

the Corps of Engineers properly conducted an initial

study of the Bosque as a whole, did they adequately

address the negative consequences which might result

69a

from fracturing the Bosque? This Court will now indicate

for the second time that the only testimony which will be

allowed at the evidentiary hearing will be that which

directly relates to the manner in which the Corps of

Engineers undertook their study of the Bosque, and

whether that process passes statutory muster. The evi-

dentiary hearing is not an opportunity for the parties to

establish an additional evidentiary basis for those issues

that this Court has deemed restricted to the administra-

tive record.

Given these guidelines, the Court will order that the

parties conduct that discovery, including depositions,

which may be accomplished in good faith by the morning

of the evidentiary hearing, which relates to the issues as

defined in the foregoing paragraph.

WHEREFORE,

IT Is ORDERED, ADJUDGED AND DECREED that

the defendant’s Motion to Compel Immediate Deposi-

tions is granted, but is limited to discovery which falls

within the guidelines established in the body of this

Order.

Dated this 11th day of May, 1989.

/s/ Juan G. Burciaga

United States District Judge

for Hon. John E. Conway

70a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

VILLAGE OF LOS RANCHOS DE

ALBUQUERQUE, et al.,

Plaintiffs,

vs. No. CIV 88-1032 JC

LT. GENERAL HENRY J.

HATCH, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

(Filed May 8, 1989)

THIS MATTER is now before the Court on the defen-

dant City of Albuquerque’s Motion to Dismiss for Failure

to State a Claim, filed March 13, 1989; the defendant

City’s Motion for Protective Order, filed March 13, 1989;

the federal defendants’ Motion for Protective Order, filed

March 17, 1989; and the defendant City’s Motion to Dis-

miss for Lack of Standing and Estoppel, filed March 23,

1989. Having reviewed the memoranda of the parties and

the applicable case law, and being otherwise fully

advised in the premises, the Court finds that the first

Motion to Dismiss is not well-taken and will be denied.

The second Motion to Dismiss is well-taken and will be

granted. The City’s Motion for Protective Order is moot,

and the federal defendants’ Motion for Protective Order

is well-taken in part and will be granted in part. The

Court’s reasoning is set forth below.

7la

PART I - MOTION TO DISMISS FOR FAILURE TO

STATE A CLAIM

On August 29, 1988 the plaintiffs commenced this

action alleging that the Army Corps of Engineers, the

U.S. Fish and Wildlife Service and the City of Albuquer-

que violated the National Environmental Policy Act

(NEPA), 42 U.S.C. § 4321 et seq., § 404 of the Clean Water

Act, 33 U.S.C. § 1341 and the Fish and Wildlife Coordina-

tion Act, 16 U.S.C. § 662, in granting Army Permit No.

NM-OYT-0458 to the City of Albuquerque for construc-

tion of one aspect of the Montano Bridge and Corridor

(Montano Project).

The sole basis for the City defendant’s Motion to

Dismiss for Failure to State a Claim is that the plaintiffs’

reliance on 28 U.S.C. § 1331 and § 1361 as jurisdictional

basis is misplaced. The City Suggests that the current

action can be sustained only by a petition for judicial

review under the Administrative Procedures Act (APA), 5

U.S.C. § 706(2)(A).

A review of the applicable case law suggests that the

defendant’s position is not well-taken, and that the plain-

tiffs have properly pled jurisdiction under 28 U.S.C.

§ 1331 and 5 U.S.C. § 706. In Califano v. Sanders, 430 US.

99 (1977), the Supreme Court indicated that the 1976

modifications to § 1331 jurisdiction conferred “jurisdic-

tion on the federal courts to review agency Action, regard-

less of whether the APA of its own force served as a

jurisdictional predicate.” This Court is guided by Califano

and further finds that the APA specifically contemplated

U.S. District Court review of agency actions. Title 5 U.S.C.

§ 702, entitled “Right to Review” specifically states that

72a

A person suffering legal wrong because of

agency action, or adversely affected or

aggrieved by agency action within the meaning

of a relevant statute, is entitled to judicial

review thereof.

This jurisdictional axiom was also recognized in

Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986), a

case presented to this Court by the defendants. There the

circuit court found that the plaintiff’s suit seeking judicial

review of an Army Corps of Engineers issuance of a

permit under § 404 or the Clean Water Act, 33 U.S.C.

§ 1344, was properly based on 28 U.S.C. § 1331 as well as

33 U.S.C. § 1365. Id. at 827.

The Court finds that paragraph 2 of the Complaint

properly alleges § 1331 jurisdiction, and that paragraph 3

of the Complaint properly alleges review under the APA

at § 706. Both paragraphs are incorporated by reference

into each of the claims for relief; therefore, jurisdiction is

properly based.

The allegation of § 1361 jurisdiction as it appears in

the Complaint is redundant. In the plaint

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