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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 817

## Text

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

a)

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.

ii
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,
V.

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

iV

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

vi

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).

10

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.

1]

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

12

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

13

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).

14

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).

=

15

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

16

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).

17

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.

18

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.

19

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

20

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_-

21

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.

22

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

23

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

24

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

25

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.

26

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.

27

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

ia

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

la

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)

2a

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.”

3a

§ 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.

4a

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.

5a

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

6a

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.

7a

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.

8a

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,

V.

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

9a

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

2

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:

1.

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
TZ
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:

1.

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 &

j
4
}

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.

(c) Air Quality Impacts.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0629%3A1. Public record. Not legal advice.