Petition for Writ of Certiorari — Texas Water Conservation Ass'n v. Department of the Interior

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FILED

IN THE JUN 2 1992

Supreme Court of the United Statma of tHe cers

OCTOBER TERM, 1991

SABINE RIVER AUTHORITY, ef al.

Pe tations rs,

VV.

UNITED STATES DEPARTMENT OF INTERIOR. et al.

Resvondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

WILLEAM H. BURCHETTE*

CHRISTINE C. RYAN

VINCENT P. DUANE

JORDEN SCHULTE & BURCHETTE

1025 Thomas Jefferson Street, N.W.

Suite 400 East

Washington, D.C. 20007

(202) 965-8100

EARL ROBERTS

ROBERTS, HILL & CALK

2020 Bill Owens Parkway

Suite 200

Longwiew, Texas 75604

(903) 759-2020

Attormeys for Petitioner

Sabine River Authority

“Counsel of Record

June 2, 1992

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the taking by a federal agency of a con-

servation easement that forecloses in perpetuity the

use of land for any purpose inconsistent with its

terms, but which nevertheless may have a significant

adverse effect on the quality of the human environ-

ment, is a federal action exempt from the National

Environmental Policy Act, 42 U.S.C. § 4321 et seq.

(“NEPA”’), simply because it preserves the existing

physical characteristics of the land.

PARTIES IN THE COURT BELOW

Petitioner is the Sabine River Authority

(‘‘Petitioner’ or the ‘“‘Authority’’), an instrumentality

of the State of Texas charged by the Texas legislature

with responsibility, inter alia, for water supply and

conservation. Respondents are the United States De-

partment of Interior and the United States Fish and

Wildlife Service (the ‘‘FWS’’). In addition, the follow-

ing parties intervened in the proceedings before the

district court: Texas Water Conservation Association

(‘“‘TWCA’’), which intervened to support Petitioner’s

argument regarding the need for an Environmental

Impact Statement (‘‘EIS’’) to cover the easement ac-

quisition in this case and to argue its interests in

having FWS prepare a programmatic EIS for its

Texas Bottomland Hardwoods Preservation Program;

and the Sierra Club and the National Audubon Society

each of which intervened to support FWS’s Finding

of No Significant Impact (‘FONSI’) in connection

with the easement acquisition challenged here.

TABLE OF CONTENTS

REASONS FOR GRANTING THE PETITION ..........

IT.

ITI.

IV.

SRM MOPPLS RIMES ssssnassccssenscisesncesnnsersonceessecasse.,

THE ELEVATION OF PRESERVATION IN-

TERESTS TO THE EXCLUSION OF WATER

SUPPLY (AND OTHER) ENVIRONMENTAL

INTERESTS VIOLATES THE “OUTCOME

NEUTRAL” ANALYSIS REQUIRED BY

METHOW VALLEY ...........ccccccccccssoscssesseeees ss,

THE DECISION BELOW WILL EXCLUDE

FROM NEPA ACTIONS THAT ADVERSELY

AFFECT THE QUALITY AND SUPPLY OF

MINIT Wiiracahenihssainnhndnnadensarewedcadaporionasecakeancssc..

THE DECISION BELOW MISAPPLIED MET-

ROPOLITAN EDISON TO EXCLUDE FROM

NEPA FEDERAL ACTIONS WHICH PRE.

SERVE THE PHYSICAL ENVIRONMENT .....

A. Metropolitan Edison Does Not Turn On

The Causal Relationship Between The

Federal Action And A “Change In The

Physical Environment.” ..........................

o>)

B. Metropolitan Edison Does Not Exclude

From NEPA Risks Of Environmental

DIE ccicscsskcndannvensesnntecsandenencscassesntaceneretss 1g

COUINCLIUGIUIN scnccvccssnsccsccsccscoscssenscencesonsens svaiaeeenanens on

TABLE OF AUTHORITIES

CASES:

Aberdeen & R. R. Co. v. Students Challenging Reg-

ulatory Agency Procedures (SCRAP), 422 U.S.

Be SR VOD siienisanesinscaptmadieneunubisshinaeniembaceuaices

American Horse Protection Assoc. v. Andrus, 608

ef Bite. Be we... ees e een

Baltimore Gas & Electric Co. v. Natural Resources

Defense Council, 462 U.S. 87 (1983) ou...

Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th

Cir. 1988), cert. denied, 489 U.S. 1066

ERIE ~wauccdausneubataoeubals neues sae knieiameaamanionaion

City of New York v. United States Dept. of Transp.,

715 F.2d 732 (2d Cir. 1983); cert denied, 465

CFa RN EIU sucesuskacalecduesscmenbecencunaraaanaieinn

Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988),

cert. denied, 489 U.S. 1012 (1989) .........

Conservation Law Foundation v. General Services

Admin., 707 F.2d 626 (1st Cir. 1983) ............

Colorado River Water Conservation Dist. v. United

Semben, GEG UB. BOO COTS) ccvccscicoccnececssnancesess

Defenders of Wildlife v. Andrus, 627 F.2d 1238

RPA Reals. “UMUD nicissnnatiicdinsisnecancan banged

Environmental Defense Fund v. Andrus, 596 F.2d

Oe COU SE. DIIGO sasisickccssaseincksceaseienanss

Jones v. Gordon, 621 F. Supp. 7 (D.° Alaska 1985),

affd in part and rev'd in part, 792 F.2d 821

GUE ane POE vincudsnsccrentisatnnasessnnnieatae red asate.

La Flamme v. Federal Energy Regulatory Com.,

$52 F.2d 389 (9th Cir. 1988) ............cccccccesseese

Lockhart v. Kenops, 927 F.2d 1028 (8th Cir. 1991),

cert. denied, __. U.S. __., 112 S.Ct. 186

COUPEE <iansecocsstduacassmbceaeaerduaascatiemaeneeaatce

Lujan v. National Wildlife Federation, __ U.S.

suns: 5. MAD ee EET E CEMOD ictstcsicbnieiioces

Page

16,18

Table of Authorities Continued

Page

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983) ...........ccssccosssoeses passim

National Association of Property Owners v. United

States, 499 F. Supp. 1223 (D.Minn. 1980) ...... 1]

No GWEN, Inc. v. Aldridge, 855 F.2d 1380 (9th

CORD, BIIIEE ivencissidicasesdantanetsaabousadeneeamaienebons 20

North Carolina v. Hudson, 731 F. Supp. 1261

(E.D.N.C. 1990), aff'd sub nom., Roanoke River

Basin Ass’n. v. Hudson, 940 F.2d 58 (4th Cir.

RUUED scrsesckdsncatsceciaedssaanscassemsacman aaecaiaiines 10

Northwest Indian Cemetery Protective Ass’n v. Pe-

terson, 764 F.2d 581 (9th Cir. 1985), rev’d on

other grounds sub. nom., Lyng v. Northwest

Indian Cemetery Protective Ass’n, 485 U.S. 439

LRWUNED sxcdenssnssnchssskansactuasebaisauasbiainaneedaienmaaaats 17

Ono v. Harper, 592 F. Supp. 698 (D. Hawaii

RUUD. vaissinaccnscasslilise Larsaieshases ubeuacadsiiaiealaanaecoumen ieee 21

Robertson v. Methow Valley Citizens Council, 490

Us Se CRUE sccensssscriccecucssannédaseabaemmanies 7,8,9

Srverra Club v. U.S. Forest Service, 843 F.2d 1190

CORBA SARs | RII nck seatennscascsccteaesanedacenenpscetaameenss 13

Strycker’s Bay Neighborhood Council v. Karlen, 444

Rss. HEE GHEE kcdaseatincecicrateneeuanlaanaionnees 7

Vermont Yankee Nuclear Power Corp. v. Natural

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

URIPORED sicecdésenuwiabpuseseanatacetiaeuspeesacasioaeinasiavnemenions 7

Weinberger v. Catholic Action of Hawaii, 454 U.S.

RIP SEDER sinstecsnadetspicinmnibicaiaupemianenatiamabakeods 17

United States v. 27.09 Acres of Land, 760 F. Supp.

BUb TE. Ss Be ccrecbesccuaserennes 10

STATUTES, REGULATIONS AND RULES:

National Environmental Policy Act, 42 U.S.C. §

Gaal OC GOR. CREE P csismeciccsncloccsnean passim

Table of Authorities Continued

Page

5 U.S.C. §§ 701-706 (Administrative Procedure

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ee ces Se UD antes ain erect nucleation 2

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Se RF ees I. oo rauivansaccicasasessccacuasasiens cies 4

eS ie. CEE ED ik cticsseshaserissdtensiarsitacens 8

BO C.F... § LGDG BING) ..ccccscersecsvcsscccevsecsccsacsescess 17

Oe Se ee RE eisaciesskcencsssestesenersteracinsosom 6

OTHER AUTHORITY:

D. Mandelker, Law & Litigation, (1984) ..........0.0. 17,19

Schectman, “The Bambi Syndrome:”’ How NEPA’s

Public Participation In Wildlife Management

Is Hurting The Environment, 8 Envt’l L. 611,

UE ROUTE cll scccacsasadnaseshadumacernouinosmcsansaecinchoants: 12

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

No. 91-

SABINE RIVER AUTHORITY, et al.

Petitioners,

vis

UNITED STATES DEPARTMENT OF INTERIOR, et al.

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

The Sabine River Authority petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at

951 F.2d 669 (5th Cir. 1992) and is reproduced in

Appendix A, infra. The opinion of the district court

is reported at 745 F. Supp. 388 (E.D.Tex. 1990) and

is reproduced in Appendix B, infra.

JURISDICTION

The judgment of the court of appeals was entered

on January 28, 1992. On February 11, 1992,

Petitioner-Intervenor, Texas Water Conservation As-

sociation (““TWCA’’), filed a timely petition to the

court of appeals for a panel rehearing. That petition

was denied by the court of appeals by order dated

March 4, 1992, reproduced in Appendix C, infra. Pur-

suant to Sup. Ct. Rule 13, the time for filing this

petition for writ of certiorari runs to and including

June 2, 1992. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

Sections 2, 101 and 102 of the National Environ-

mental Policy Act of 1969, 42 U.S.C. 4821, 4331 and

4332, reproduced in Appendix D, infra.

STATEMENT OF THE CASE

Fortunately, most people are able to take an ade-

quate supply of clean drinking water for granted. This

is due in large part, to the planning and conservation

efforts of state and local water districts or authorities.

Water authorities, such as Petitioner, administer a

complex process of conserving, purifying, piping and

delivering potable water to homes, farms and busi-

nesses across this nation. As a result, in most in-

stances, citizens of this country can turn on a faucet

without regard to the vital and sophisticated process

involved in sustaining safe and adequate water in the

human environment.

Although modern technology has been brought to

bear on the water supply process, the availability of

adequate and safe water is still very dependent on

the forces of nature. As graphically illustrated by

events in southern California over the last eighteen

months, a natural drought can debilitate the environ-

ment, for humans and wildlife alike. Through a so-

phisticated study of available supply, climate,

geography and population, water authorities project

the need for water and decide the best means to

satisfy it.

As the result of such studies, in the spring of 1985

the Authority announced its preliminary decision to

construct the Waters Bluff Reservoir (‘‘Waters Bluff’)

along the Sabine River in Smith, Upshur and Wood

Counties, Texas, to assure an adequate and safe sup-

ply of water in east Texas. Waters Bluff would entail

the inundation of portions of the Little Sandy Hunting

and Fishing Club (the ‘“‘Club”’), a private club serving

the recreational needs of a small and exclusive mem-

bership. After the Authority announced its intentions.

F'WS, in coordination with the Club and with little

regard for the Authority’s studies in support of

Waters Bluff, took a conservation easement over the

Club lands and deposited the land in the National

Wildlife Refuge System. FWS’s action precluded the

Authority, as an agency of the State of Texas. from

using the site to meet anticipated water supply needs

and safeguarded the Club lands for the continued ex-

clusive use of its members.

F'WS prepared an environmental assessment (‘‘EA’’)

in connection with the acquisition of the Club ease-

ment. The EA’s cursory and result-oriented review of

water supply reflected the agency’s inexperience in

water supply planning. Experts in water issues within

the Department of Interior, however, had a deeper

respect forthe vital importance of water supply plan-

ning and voiced concern that the easement acquisition

might jeopardize the future supply of water in the

environment. These experts strongly objected to ac-

quisition of the Club easement without the benefit of

an Environmental Impact Statement (‘‘EIS’’) to ad-

dress water supply and concluded that the EA was “‘a

biased document frequently lacking in data and evi-

dence but rich in negatives and superlatives.” (See App.

E, Letter From Bureau of Reclamation, Chief of the

Environmental Branch to FWS, Regional Planning Of-

ficer). FWS was indifferent to the concerns raised by

these experts. Consumed by its objective to preserve

the Club property, FWS dedicated much of the EA to

a discussion of how Waters Bluff would injure migra-

tory bird habitat. Yet, the EA should have addressed

how the agency’s action would impact water supply,

not how Petitioner’s proposed development of Waters

Bluff would impact migratory bird habitat. The limited

discussion of water supply issues that did appear in

the EA was fraught with factual errors, all of which

were fully discussed in Petitioner’s briefs below.

Accordingly, the Authority brought suit to chal-

lenge FWS’s easement acquisition under NEPA claim-

ing that the agency should have prepared an EIS to

consider the effect of its action on water supply for

the residents of Texas. The jurisdiction of the district

court over the Authority’s NEPA claims was prem-

ised on 28 U.S.C. §§ 1831 and 1861 and the Admin-

istrative Procedure Act, 5 U.S.C. §§ 701-706. At the

close of discovery, both the Authority and FWS moved

for summary judgment.

The district court, sharing FWS’s disregard for

water supply, affirmed the agency’s FONSI. Water

was discounted so drastically by the district court that

it was no longer even regarded as an environmental

issue within the “zone of interests’ protected by

NEPA. (See App. B at 39a (Authority’s claims ‘“‘con-

trary to purposes of NEPA” and “‘not within NEPA’s

Suede

ee sane

scope’’)). This predisposition heavily influenced the

district court, causing it to overlook the errors and

inadequacies of FWS’s EA pointed out by the Au-

thority. As far as the court was concerned, FWS’s

preparation of an EA was gratuitous because the

court determined that the Authority’s water supply

interests were contrary to, and unprotected by, NEPA

in the first instance. (See, é.g., App. B at 48a-49a

(FWS failure to consider controversial, precedential

and cumulative effects of action excused because

F'WS’s action beyond scope of NEPA anyhow)). The

district court so undermined the nature of the Au-

thority’s interest in water supply that the Authority

was even denied standing to assert a claim under

NEPA.

The Fifth Circuit Court of Appeals, unable to accept

that the supply of water, a life-sustaining element

critical to the human environment, was not protected

by NEPA, reversed the decision of the district court

on standing, stating:

the injuries alleged by the plaintiffs in their

complaints - harmful effects on the quality

and quantity of East Texas’ water supply -

“are among the sorts of interests” that

NEPA was specifically designed to protect.

(App. A at lla (emphasis in original), citing, Lujan

v. National Wildlife Federation, ___ U.S. < Sema 6

S.Ct. 3177, 3187 (1990)).

Although recognizing that water supply was a pro-

tected interest under NEPA, the court of appeals

agreed with the district court that the acquisition of

a non-development easement, which does not alter the

physical environment cannot amount to a “major fed-

eral action [ ] significantly affecting the quality of the

human environment.” (App. A at 20a (citations omit-

ted)). Thus, the court of appeals upheld the district

court’s grant of summary judgment in favor of FWS.

TEXT: REASONS FOR GRANTING THE PETITION

I. Introduction

The writ of certiorari should be granted to reverse

the decision of the court of appeals which creates an

unprecedented blanket exemption from NEPA’s man-

date that every federal agency conduct an EIS when

a proposed major federal action ‘‘may significantly

affect the quality of the human environment.’ NEPA

§ 102(C), 42 U.S.C § 43832(C). By removing from NE-

PA’s purview federal actions that preserve the ex-

isting physical environment, the lower court has given

the federal government carte blanche to acquire lands

and dedicate natural resources to preservation uses

without having to consider whether such action may

adversely affect the human environment.!

As discussed fully below, the exemption created be-

low is imbued with important policy implications and:

‘ By concluding that preservation actions that cause no site-

specific threshold change in the physical environment, never sig-

nificantly affect the quality of the human environment for pur-

poses of NEPA, the lower courts have categorically excluded

these actions from the reach of NEPA. (App. A at 20a). This

holding: functions as a pre-prepared FONSI for all future pres-

ervation aCtions of the type at issue here. Because the purpose

of an EA is to determine whether to prepare an EIS or instead

issue a FONSI, 40 C.F.R. § 1508.9 (1), it is axiomatic that the

ruling below obviates the need for federal agencies to prepare

even an EA before dedicating natural resources to preservation

purposes.

(1) infuses a substantive bias in favor of

preservation actions into NEPA which

cannot be reconciled with the ‘‘outcome

neutral’’ application of the statute con-

templated by Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 350-351

(1989);

(2) will exclude from NEPA preservation ac-

tions, notwithstanding that such actions

may adversely affect national water sup-

ply planning; and

(3) rests on a misapplication of this Court’s

ruling in Metropolitan Edison Co. v. Peo-

ple against Nuclear Energy, 460 U.S. 766

(1983).

II. The Elevation of Preservation Interests To The Ex-

clusion Of Water Supply (And Other) Environmental

Interests Violates The ‘“‘Outcome Neutral’’ Analysis

Required by Methow Valley

The lower court’s holding turns on a substantive

bias in favor of FWS’s preservation goals that cannot

be reconciled with this Court’s ruling in Robertson v.

Methow Valley Citizens Council, 490 U.S. 332 (1989).

In Methow Valley, this Court explicitly restated the

well-established principle that NEPA itself does not

impose substantive standards mandating particular re-

sults, but simply prescribes the necessary process for

preventing uninformed, rather than unwise, agency

action. Id., 490 U.S. at 351, citing, Strycker’s Bay

Neighborhood Council v. Karlen, 444 U.S. 223, 227-

28 (1980\per curiam); Vermont Yankee Nuclear Power

Corp. v. Natural Resources Defense Council, Inc.. 435

U.S. 519, 558 (1978).

The decision below treats the objectives of pres-

ervation and those of NEPA as coextensive and in-

terchangeable. This assertion, however, plainly

misstates the law of NEPA. Simply stated, NEPA is

not a preservation statute. Methow Valley, 490 U.S.

at 351, n. 14. Nor does NEPA have as its purpose

the protection of endangered species or the creation

of refuges. These objectives are substantive goals to

be pursued at the agency’s discretion after complying

with NEPA’s procedural dictates.

The procedural sufficiency of FWS’s NEPA review

escaped scrutiny in this case because the lower courts

embraced FWS’s preservation agenda as an embod-

iment of NEPA’s goals. The courts’ affirmance of

FWS’s FONSI turned on their approval of the char-

acter of the federal action in question - namely, the

preservation of migratory bird habitat. The court of

appeals claims ‘‘[t]his case is for the birds - thousands

of them.” (App. A at 3a). Quite to the contrary, the

legal issue to which judicial review is confined in this

case has nothing to do with birds, or for that matter

other forms of wildlife, wetlands or old growth tim-

ber. While the court may have found FWS’s efforts

to preserve these assets “laudatory,” (App. A at 5a),

the positive attributes of FWS’s action have no rel-

evance to whether an EIS is required to examine the

effect of FWS’s action on water supply. The need for

an EIS cannot be excused merely because a court, in

its judgment, finds the action as a whole is environ-

mentally beneficial. See 40 C.F.R. § 1508.27(b\(1) (sig-

nificant adverse effect may exist even if agency

believes net effect will be beneficial).*

* As stated in Jones v. Gordon, 621 F. Supp. 7 (D. Alaska

A reviewing court cannot set aside a procedurally

sufficient decision “‘simply because the court is un-

happy with the result reached.”’ Vermont Yankee, 435

U.S. at 558. The corollary question raised by this case

is whether a court can uphold a procedurally deficient

agency decision because it is pleased with the result

reached. The court of appeals has done just this. Ac-

cording to the decision below FWS’s procedures un-

der NEPA need not be scrutinized because where

‘land is earmarked as a wildlife habitat and migratory

bird refuge ... this intended ‘use’... has no signif-

icant environmental impact.’’ (App. A, at 22a). By

infusing into NEPA preservation goals, the decision

below is. incongruous with the ‘‘outcome neutral”’

analysis mandated by Methow Valley.

III. The Decision Below Will Exclude From NEPA Ac-

tions That Adversely Affect The Quality And Sup-

ply Of Water

The interests of water supply and those of migra-

tory bird habitat often compete for the same natural

resources - non-coastal wetlands. A balanced human

environment requires an orderly allocation ‘of these

finite natural resources between wildlife and water

1985), affd in part and rev'd in part, 792 F.2d 821 (9th Cir.

1986):

The mere fact that an agency has been given the role of

implementing an environmental statute is insufficient to [ex-

cuse the agency from NEPA compliance] .... [To do so in] -

all cases in which a federal agency administers a statute which

was designed to preserve the environment would considerably

weaken NEPA, rendering it inapplicable in many situations.

Id. at 13.

supply.* If properly employed, NEPA provides a proc-

ess to ensure this objective.

Not only is water a vital component of the envi-

ronment protected by NEPA, ‘“[wlater is a necessity

of life. It is a valuable resource which must be pro-

tected and conserved and shared by all.” North Car-

olina v. Hudson, 731 F. Supp. 1261, 1273 (E.D.N.C.

1990\upholding FONSI for project entailing with-

drawal of water from lake for municipal water sup-

ply), affd sub. nom., Roanoke River Basin Ass'n. v.

Hudson, 940 F.2d 58 (4th Cir. 1991). For this reason,

“even marginal degradation of drinking water is en-

vironmentally significant ....’’ United States v. 27.09

Acres of Land, 760 F. Supp. 345, 353 (S.D.N.Y. 1991).

At issue here is one natural resource targeted by two

competing users, both advancing legitimate, albeit

conflicting, environmental agendas. NEPA must be

applied even-handedly to require that both interests

acknowledge the effects of their actions on the other

competing environmental interest.

If permitted to stand, the court of appeals’ decision

will directly and adversely affect national water sup-

ply planning.* The record below is clear that of the

3 Potential reservoir sites are limited. Reservoir water storage

is feasible only where the geographic contours of the land per-

mit. The site must be free from pre-existing building and other

structures. Water must be stored in reasonable proximity to its

intended users. Considering these limitations, it becomes evident

that water authorities and preservation groups compete for use

of the same natural resources.

‘The Authority supports and endorses the Petition for Writ

of Certiorari filed in this case by the Texas Water Conservation

Association which seeks inter alia a programmatic EIS to ad-

dress the effects of FWS’s Texas Bottomland Hardwood Pres-

62 sites in Texas targeted for preservation by FWS,

27 conflict with identified potential reservoir sites.

(Record Vol. 3, 59 at 6). The situation in Texas is

likely representative of the scope of the conflict on

a national scale. Indeed, the conflict between pres-

ervation and water supply will undoubtedly be inten-

sified in areas where water planning is even more

critical to maintaining the quality of human environ-

ment. See, e.g., Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 804 (1976)(‘‘It

is probable that no problem of the Southwest section

of the Nation is more critical than that of scarcity

of water.”); Environmental Defense Fund v. Andrus,

996 F.2d 848, 850 (9th Cir. 1979\‘‘Water is a precious

and limited resource throughout the Northern Great

Plains.”’). The ruling below wholly excludes from

NEPA, preservation actions which themselves cause

no immediate change in the physical environment.

This is so, even where such actions preclude human

intervention necessary to protect other important en-

vironmental interests - such as, in this case, a plen-

tiful clean water supply for human consumption.

Due to the complicated and dramatic intrusion of

a burgeoning human population on all aspects of the

global environment, environmental protection is no

longer simply a matter of “leaving nature alone.’’> In

ervation Program Concept Plan and Bottomland Hardwoods

Land Protection Plan.

* Both lower courts find great favor in the remark of one

district judge that “NEPA does not require a federal agency to

prepare an EIS in order ‘to leave nature alone.’ (App. A at

20a; App. B at 8la, citing, National Association of Property

Owners v. United States, 499 F. Supp. 1223, 1265 (D.Minn. 1980).

The Authority respectfully contends that this maxim is the prod-

certain circumstances, the most environmentally de-

structive option is to leave nature alone. Often what

is warranted is not preservation, but “environmental

management.’’® Environmental management entails

affirmative conduct to maintain a desired balance in

an ecosystem that has been unbalanced, often by some

human disruption. The progressive character of en-

vironmental management stems from a recognition

that mankind must exercise active stewardship over

the environment. By assuming that preservation is

always the most environmentally sound course of ac-

tion, the ruling in this case may contribute to future

environmental degradation by excluding from NEPA

environmentally harmful actions taken in the name of

preservation.

The court of appeals held that pure preservation

actions will never have an adverse impact on the hu-

man environment. (App. A at 22a (Where ‘“‘land is

earmarked as a wildlife habitat and migratory bird

refuge ... this intended ‘use’... has no significant

environmental impact.’’)). Plainly this holding is inac-

curate, where preservation would preclude a pro-active

plan of environmental management designed to pro-

uct of a simplistic, shortsighted and incomplete understanding

of environmental protection.

§ It is now recognized that wildlife management does not mean

absolute protectionism. One of the most important tasks of

the wildlife manager is to control the numbers of species

which become over abundant in limited park ecosystems be-

cause they are freed from the threats of predation and hunt-

ing.

Schectman, “The Bambi Syndrome:’’ How NEPA’s Public Par-

ticipation In Wildlife Management Is Hurting The Environment,

8 Envt’l L. 611, 642 (1978).

mote a balanced ecosystem. See, e.g., Defenders of

Wildivfe v. Andrus, 627 F.2d 1238, 1240 (D.C.Cir.

1980)(state plan to promote moose population entailed

killing wolves); American Horse Protection Assoc. v.

Andrus, 608 F.2d 811, 814 (9th Cir. 1979\action to

protect grasslands entailed relocation of wild horses).

If permitted to stand, the lower court’s ruling will

eliminate the need for agencies to consider NEPA at

all even when the preservation action precludes an-

other federal, state or private environmental body

from engaging in wildlife management.’

IV. The Decision Below Misapplied Metropolitan Edi-

son To Exclude From NEPA Federal Actions Which

Preserve The Physical Environment.

The court of appeals rests its decision excluding

preservation actions from NEPA on this Court’s hold-

ing in Metropolitan Edison Co. v. People Against Nu-

clear Energy, 460 U.S. 766 (1983). Based on

Metropolitan Edison, a case involving the re-start of

’ The fallacy in excluding preservation actions from NEPA is

also illustrated by actions outside the realm of wildlife manage-

ment. For instance, suppose the state in administering its forests

engaged in a practice of extinguishing naturally caused fires.

Suppose further that FWS then acquired a portion of these

forests for a refuge and, with respect to these lands, adopted

a contrary policy of allowing natural fires to burn themselves

out reasoning that fires from electrical storms would promote

the growth of sequoias. See, e.g., Sierra Club v. U.S. Forest

Service, 843 F.2d 1190, 1194 (9th Cir. 1988\testimony that min-

eral soil needed for sequoia reproduction was provided by light-

ning fires). FWS’s acquisition would escape NEPA review under

the ruling of this case because it ‘leaves nature alone” by merely

preserving the forest in its natural state, even though the prac-

tice of allowing fires to burn freely raises obvious environmental

concerns that should be fully explored in a NEPA review.

the Three Mile Island nuclear plant, the lower court

concluded that FWS was not obliged to prepare an

EIS because pure preservation actions do not change

the physical environment. (App. A at 21a (“The ac-

quisition of a negative easement ... does not result in

the requisite ‘change’ to the physical environment.’’)).

This holding is primarily the result of a misunderstand-

ing and misapplication of Metropolitan Edison.

A. Metropolitan Edison Does Not Turn On The Causal Re-

lationship Between The Federal Action And A ‘‘Change

In The Physical Environment.”’

It is elementary that NEPA governs (1) major fed-

eral actions that (2) may cause an adverse environ-

mental impact or effect. NEPA, § 102(C), 42 U.S.C.

§ 43832(C). In order for an environmental effect to

warrant consideration under NEPA there must be a

“reasonably close causal relationship between a

change in the physical environment and the effect at

issue.”’ Metropolitan Edison, 460 U.S. at 774 (em-

phasis added). The ‘“‘effect’’ at issue in Metropolitan

Edison was the psychological harm that allegedly

would result from people’s perceptions of the “risk

of a nuclear accident.’”’ Yet because ‘‘a risk, is, by

definition unrealized in the physical world,” this Court

held that there was no causal relationship between

the alleged effect, psychological harm, and a change

in the physical environment. Jd. at 775. For purposes

of the present case it is important to note that Met-

ropolitan Edison did not focus on the relationship

between the federal action and a “‘change in the phys-

ical environment,”’ but, rather, involved the relation-

ship between the alleged effect and a ‘‘change in the

physical environment.”’ Metropolitan Edison, 460 U.S.

at 774 (‘[T]he terms ‘environmental effect’ and ‘en-

vironmental impact’ ... (must) include a requirement

of a close causal relationship between a change in the

physical environment and the effect at = 1s-

sue.’’(emphasis added).*

Nonetheless, the opinion by the court below

states:

The Supreme Court’s decision in Metropoli-

tan Edison Co. v. People Against Nuclear En-

ergy makes clear that the inquiry in NEPA

cases is whether the federal action at issue

is “proximately related to a change in the

physical environment.” 103 S.Ct. at 1561

(emphasis added).

(App. A at 21a). Herein ‘ties the court of appeals’

fundamental analytical error. Contrary to the lower

court opinion, nothing in Metropolitan Edison sug-

gests that the federal action in and of itself must

constitute a change in the physical environment of

the specific site affected. Yet this is the holding be-

low. (See App. A at 21a)‘‘The acquisition of a neg-

ative easement...does not result in the requisite

‘change’ to the physical environment.’’)). The court of

* Thus, this Court in Metropolitan Edison did not require that

the re-start of Three Mile Island be proximately related to a

change in the physical environment, only that the alleged effect,

psychological harm, be related to such a change. Of course NEPA

requires one uninterrupted causal chain, beginning with (1) a

federal action that (2) causes environmental effects that, in turn

(3) are causally related to a change in the physical environment.

The point to emphasize, is that the “change in the physical

environment”’ elucidated by Metropolitan Edison need not be

contemporaneous with the taking of the federal action, but may

manifest itself later in time as the effects of a federal action

are felt.

appeals has shifted the causal requirement of a change

in the physical environment, from the environmental

effect alleged, to the federal action at issue. This

misreading of Metropolitan Edison gravely distorts

the law of NEPA.

Plainly, the focus of NEPA is on adverse environ-

mental effects, not on the metaphysical essence of

the federal action.’ If these effects are causally re-

lated to a change in the physical environment, they

are properly subject to NEPA, without regard to the

particular character of the federal action. Metropoli-

tan Edison, 460 U.S. at 774. Thus, title transfers -

federal actions that do not themselves change the

physical environment - are still subject to NEPA.”

Similarly, often an agency must prepare an EIS when

granting a lease, license or permit or before issuing

a recommendation or proposal, even though such ac-

*Instructive is City of New York v. United States Dept. of

Transp., 715 F.2d 732 (2d Cir. 1983); cert denied, 465 U.S. 1055

(1984). The second circuit noted that the federal action of trans-

porting radioactive waste did not appear to use a natural re-

source, Jd. at 742; in other words the federal action did not

“change in the physical environment.’’ While the court opined

that “‘the movement of radioactive material along highways

(could) be considered a ‘use’ of the surrounding air,” Jd. at 742,

n.9, the applicability of NEPA was not dependent on the federal

action having a close causal relationship to a ‘‘change in the

physical environment.” It was enough that the alleged effect, a

possible accident, would cause adverse change in the physical

environment.

10 See, e.g., Lockhart v. Kenops, 927 F.2d 1028, 1032 (8th Cir.

1991), cert. denied, ___ U.S.____ , 112 S.Ct. 186 (1991); Bob Mar-

shall Alliance v. Hodel, 852 F.2d 1223, 1227 (9th Cir. 1988),

cert. denied, 489 U.S. 1066 (1989); Conservation Law Foundation

v. General Services Admin., 707 F.2d 626, 633 (1st Cir. 1983).

tion likewise does not change the physical environ-

ment."’

Notwithstanding the absence of change in the phys-

ical environment, title transfers, leases, licenses, rec-

ommendations and proposals are subject to NEPA,

because they create a “‘risk’’ that subsequent action

may injure the physical environment. “The Supreme

Court has indicated that environmental risks are en-

vironmental effects that fall within NEPA.” D. Man-

delker, Law & Litigation, § 8.44 n.1 (1984)citing

Metropolitan Edison); see also Baltimore Gas & Elec-

tric Co. v. Natural Resources Defense Council, 462

U.S. 87, 100 (1983)(‘‘An agency must allow all sig-

nificant environmental risks to be factored into its

decision.”’); 40 C.F.R. § 1508.27(b\5\The ‘“‘signifi-

cance’’ of a major federal action depends in part on

‘(t]he degree to which the possible effects on the

human environment are highly uncertain or involve

unique and unknown risks.’’).'* Again, the failure of

‘1 See, e.g., Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir.

1988\sale of leases created risk of substantial impact on envi-

ronment), cert. denied, 489 U.S. 1012 (1989); La Flamme v.

Federal Energy Regulatory Com., 852 F.2d 389 (9th Cir.

1988XFERC issuance of license for hydroelectric plant must com-

ply with NEPA); Aberdeen & R. R. Co. v. Students Challenging

Regulatory Agency Procedures (SCRAP), 422 U.S. 289, 320

(1975XEIS required at time agency makes a recommendation or

report on proposal for federal action).

‘2 See also; Weinberger v. Catholic Action of Hawaii, 454 U.S.

139, 146 (1981\dictum\proposal to store nuclear weapons would

trigger obligation to prepare EIS to consider environmental haz-

ards); Northwest Indian Cemetery Protective Ass’n v. Peterson,

764 F.2d 581, 587-88 (9th Cir. 1985XEIS must consider risk to

water quality arising from possible landslides triggered by road

construction), rev’d on other grounds sub. nom., Lyng v. North-

the court of appeals to recognize FWS’s duty to ad-

dress in an EIS the risk to water supply created by

the agency’s action was the product of a misreading

of Metropolitan Edison.

B. Metropolitan Edison Does Not Exclude From NEPA

Risks Of Environmental Injury.

The court of appeals has adopted the finding of the

district court that the ‘‘same element of risk is pres-

ent’’ in the instant case as was at issue in Metro-

politan Edison. (App. B at 36a).'° The lower courts

fail to appreciate that the ‘“‘risk’’ analysis presented

in this case is wholly distinct from that discussed in

Metropolitan Edison. The decisions below state that,

because environmental ‘“‘risks’’_are not “‘changes in

the physical environment,” the environmental injuries

that would result should such risks materialize, need

not be considered in an EIS."

west Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988); City

of New York, 715 F.2d at 745 (action posed risks warranting

careful consideration under NEPA).

‘3 The court of appeals avoids explicitly discussing the question

of ‘environmental risk”’ raised in this case, instead choosing to

adopt the lower court’s reasoning. (App. A at 3a (‘‘Rather than

dilute the strength of the district court’s reasoning and pollute

the legal environment with an expansive discussion of our own,

we write only to express the depth of our commitment to the

district court’s fluid opinion.’’)).

‘4In this regard, Professor Mandelker apparently has pro-

phesied the lower courts’ misinterpretation of Metropolitan Edi-

son when he states:

The decision (Metropolitan Edison) could cast doubt on cases

which have required agencies to analyze the environmental

risks of their action although the Court did not appear to

The Authority has not asked FWS to prepare an

EIS to consider injury caused solely by the risk of a

water shortage. For instance, FWS was not asked to

prepare an EIS to consider any psychological harm

to the residents of east Texas arising from their per-

ception of the risk of a water shortage. The Authority

concedes that a risk of a water shortage, being “‘un-

realized in the physical world,” is not a change in

the physical environment and any injury flowing

therefrom would not trigger an EIS. Metropolitan

Edison, 460 U.S. at 775. To the contrary, the-

Authority asked FWS to consider the injury to the

physical environment should the risk of a water short-

age be realized. Although lost on the courts below,

the distinction between injury caused by a “risk qua

risk” and injury caused by the realization of a risk

was carefully noted by Justice Rehnquist in Metro-

politan Edison.

(In this case (Metropolitan Edison) we are

considering effects caused by the risk of an

accident. The situation where an agency is

-asked to consider effects that will occur if a

risk is realized . . . is an entirely different

case.

Metropolitan Edison, 460 U.S. at 775, n.9. This qual-

ification is wholly consistent with precedent that re-

quires an agency to consider the environmental injury

that would result if realization of a risk posed by

disagree with these cases.

D. Mandelker, NEPA Law & Litigation, § 8.43 (1984). This

petition should be granted to clarify that an EIS must consider

significant environmental risks when the realization of such risks

would adversely change the physical environment.

90)

agency action would manifest a change in the physical

environment. See note 12, supra and accompanying

text. The subtle, but critical, distinction between in-

jury caused by a “risk qua risk’ and injury caused

by realization of a risk, seems also to have escaped

other lower courts. See, e.g., No GWEN, Inc. v. Ald-

ridge, 855 F.2d 1380, 1385 (9th Cir. 1988)(discussion

of district court’s misplaced reliance on Metropolitan

Edison to place risk created by federal action outside

NEPA). It is beyond question that the realization of

a water supply crisis would entail a change in the

,physical environment (e.g., desertification, loss of

wildlife and foliage). The Authority presented to FWS

significant evidence demonstrating the likelihood of

such a shortage and the injury that would result

therefrom. The corollary in Metropolitan Edison to

the effect complained of in this case, the effect of a

nuclear accident, was considered by the Nuclear Reg-

ulatory Commission (the ‘“‘NRC’’) and this Court in-

dicated that this type of risk was cognizable under

NEPA.

As a final note, the environmental harm articulated

by the Authority is not comparable to the psycholog-

ical harm of concern in Metropolitan Edison. A water

shortage is causally related to a change in the en-

vironment and is unquestionably cognizable under a

statute designed to protect ‘‘the air, land and water

which support life on earth,” Metropolitan Edison,

‘460 U.S. at 778, citing, Leg. History, 115 Cong. Rec.

40416 (1969\remarks of Sen. Jackson). Unlike the

problem that would have faced the NRC had it been

required to study the questions of psychological health,

water supply, though not directly within FWS’s area

of expertise, is within the Department of Interior’s

bho

expertise. Requiring FWS to consider the water sup-

ply views of its sister agencies, such as the Bureau

of Reclamation, would not oblige FWS ‘‘to expend

considerable resources developing ... expertise that

is not otherwise relevant to (its) congressionally as-

signed functions.’”’ Metropolitan Edison, 460 U.S. at

776. The effect of a water supply crisis on the phys-

ical environment cannot be overstated. A lack of

water threatens all life in the affected area. The loss

of forest, crops and wildlife, the drying of streams,

lakes and springs and the scorching of land are phys-

ical changes that result from a water shortage - they

are not merely psychological effects that exist in the

minds of men.

While action taken to preserve the environmental

status quo, by its very terms, does not itself cause a

change in the physical environment of the specific site

affected, (App. A at 20a and 21a, citing, Ono v. Har-

per, 592 F. Supp. 698, 701 (D. Hawaii 1983)), it may

induce conditions that will result in deleterious change

to the surrounding physical environment. In other

words, such action creates the risk of significant en-

vironmental injury. This petition should be granted to

clarify the Court’s holding in Metropolitan Edison,

and, in particular, the aspect of that decision regard-

ing an agency’s obligations to prepare an EIS where

the realization of such a risk would result in an ad-

verse ‘‘change in the physical environment.”’

Under the facts of this case, FWS’s action to pre-

serve land for inclusion in the National Refuge Sys-

tem inhibits Texas’ management of its limited water

supply resources thereby creating the risk of a water

shortage. This risk of injury to the physical environ-

ment must be considered under NEPA.

ai a

CONCLUSION

The petition for a writ of certiorari should be

granted. By excluding FWS’s action in this case from

NEPA, the decision below has injected a substantive

bias in favor of preservation that is inconsistent with

NEPA’s outcome neutral application. By treating

preservation as wholly consistent with NEPA’s ob-

jectives, the decision below fails to appreciate that

preservation is not always the optimal environmental

response. Finally, the legal basis to support the ex-

clusion of preservation actions from NEPA, is derived

from a misapplication of the rule in Metropolitan Edi-

son that environmental effects be causally related to

a change in the physical enviroriment.

Respectfully submitted,

WILLIAM H. BURCHETTE*

CHRISTINE C. RYAN

VINCENT P. DUANE

JORDEN SCHULTE & BURCHETTE

1025 Thomas Jefferson Street, N.W.

Suite 400 East

Washington, D.C. 20007

(202) 965-8100

EARL ROBERTS

ROBERTS, HILL & CALK

2020 Bill Owens Parkway

Suite 200

Longview, Texas 75604

(903) 759-2020

Attorneys for Petitioner

Sabine River Authority

June 2, 1992

“Counsel of Record

APPENDIX

{

| APPENDIX A

United States Court of Appeals,

Fifth Circuit.

No. 90-4761.

Rares 8 ae

SABINE RIVER AUTHORITY,

Plaintiff-Appellant,

and

Texas Water Conservation Association,

Plaintiff-Intervenor-Appellant,

z Tee) es ciaibing ahs Ib ei keS. 2. BRON A

U.S. DEPARTMENT OF INTERIOR et al.,

Defendants-Appellees.

and

The Sierra Club and the National Audubon Society,

Defendants-Intervenors-Appellees.

Jan. 28, 1992.

Rehearing Denied March 4, 1992.

j Action was brought challenging the Fish and Wildlife

Service’s compliance with the National Environmental Pol-

icy Act (NEPA) in connection with proposed acquisition of

conservation easement on wetlands habitat. On cross mo-

tions for summary judgment, the United States District

Court for the Eastern District of Texas, Paul N. Brown,

J., 745 F.Supp. 388, dismissed plaintiffs’ claims, and

plaintiffs appealed. The Court of Appeals, Goldberg, Cir-

cuit Judge, held that: (1) river authority and conservation

association that wanted wetlands area for construction of

Da SRIRAM ins UE Oi lr ois pe en tn WA

reservoir suffered sufficient “injury in fact’’ from grant

of nondevelopment easement to have standing to challenge

acquisition of easement based on Service’s failure to pre-

pare environmental impact statement (EIS), but (2) actions

of the Service in acquiring nondevelopment easement which

prohibited any change in status quo did not amount to

“major federal action significantly affecting quality of hu-

man environment” so as to mandate preparation of EIS.

Affirmed.

William H. Burchette, Christine C. Ryan, Jorden Schulte

& Burchette, Washington, D.C., Earl Roberts, Jr., Rob-

erts, Hill & Calk, Longview, Tex., for Sabine River Au-

thority.

Michael J. Booth, Frank R. Booth, Booth & Newsom,

Austin, Tex., Ruth H. Yeager, First Asst. U.S. Atty., Ty-

ler, Tex., Lisa Hemmer, Atty., Robert L. Klarquist, Dept.

of Justice, Appellate Section, Environmental Natural Re-

sources, Washington, D.C., for Texas Water Conservation

Ass’n.

Jos. Irion Worsham, Worsham, Forsythe, Samples &

Wooldridge, Dallas, Tex., for Little Sandy Hunting & Fish-

ing Club.

Robert G. Dreher, Sierra Club Legal Def. Fund, Wash-

ington, D.C., for Sierra Club and Nat. Audubon Society.

Appeals from the United States District Court for the

Eastern District of Texas.

Before GOLDBERG and GARWOOD, Circuit Judges, and

BUCHMEYER,”* District Judge:

GOLDBERG, Circuit Judge:

* District Judge for the Northern District of Texas, sitting by des-

ignation.

This case is for the birds—thousands of them. And we

mean that in no facetious sense.

At issue is a non-development easement on 3800 acres

of land in East Texas, containing high-quality wetlands

and wildlife habitat essential to migratory waterfowl. The

Little Sandy Hunting and Fishing Club donated the ease-

ment to the U.S. Fish and Wildlife Service in an effort

to guarantee that the wetlands would be preserved in their

pristine state without the corrupting effect of commercial,

agricultural, and industrial development. By accepting the

easement, the Fish and Wildlife Service has thus insured

that migratory birds and other wildlife can flourish there.

The Sabine River Authority and the Texas Water Con-

servation Association, though not unsympathetic to the

plight (and flight) of our fine feathered friends, filed a

lawsuit alleging that the Fish and Wildlife Service violated

the National Environmental Policy Act of 1969 (““NEPA’’),

42 U.S.C. § 4321 et seq., by failing to prepare an Envi-

ronmental Impact Statement (an ‘‘EIS’’) in connection with

the acquisition of the easement. When the district. court

dismissed their claims by way of summary judgment, Sa-

bine River Authority v. United States Dept. of Interior,

745 F.Supp. 388 (E.D.Tex.1990), they appealed. We affirm.

The district court correctly dismissed the claims brought

by the Sabine River Authority and the Texas Water Con-

servation Association, and we are hard-pressed to improve

upon its scholarly work. Its survey of the relevant case

law was extensive, its analysis persuasive. Rather than

dilute the strength of the district court’s reasoning and

pollute the legal environment with an expansive discussion

of our own, we write only to express the depth of our

commitment to the district court’s fluid opinion. We must

remediate in one area, however, filtering out the minute

particles of contaminant in the district court’s ‘‘standing’’

water.

— CL LL LOLOL LL

PHASE I

Wetlands, with its swamps, marshes, bogs, mud flats

and other water-dependent community types, are an eco-

logical treasure. They play a vital role for wildlife by pro-

viding nesting and habitat for many species of fish, birds,

plants and other wildlife. For the bird community, wet-

lands foster high species diversity, density, and productiv-

ity by providing both food and habitat, in the form of

nesting sites, breeding and rearing areas, feeding grounds,

and cover from predators. Office of Technology Assess-

ment, Wetlands: Their Use and Regulation, at 5-6, 30, 52

(1984). Many endangered species rely on our wetlands for

their survival and reproductive success. Without the wet-

lands, we are all but assured of their extinction.

Beyond the direct import of wetlands to wildlife, they

also serve other equally significant environmental func-

tions. One of the more apparent is their favorable effect

on our water quality. By filtering contaminants out of

water before they can reach the open water, wetlands

serve as nature’s own water purifier. By absorbing large

amounts of water, wetlands protect us from potential

flooding.

As with many of our most precious natural resources,

our wetlands are threatened by commercial, agricultural,

and industrial development. In the last 200 years, thirty

to fifty percent of our nation’s wetlands have disappeared.

Because wetlands are critical to flood control, water sup-

ply, water quality, and, of course, wildlife, their rapid dis-

appearance is setting the stage for what may eventually

become a significant environmental catastrophe. The State

of Texas alone has lost 8 million acres, nearly half of its

original wetlands. With only some 7.6 million acres re-

maining, wetlands presently constitute a mere 4.4 percent

of Texas’ acreage. As the wetlands continue to shrink, the

threat to our environment escalates.

Recognizing that our nation’s wetlands are vital to the

environmental equilibrium, the Fish and Wildlife Service

embarked on a laudatory effort to preserve the existing

wetlands. The Fish and Wildlife Service is charged with

the responsibility of protecting and maintaining the pop-

ulation of migratory waterfowl, other wildlife resources,

and endangered species. Toward that end, it established

the National Wildlife Refuge System, a project that has

earned widespread approval from environmental groups.

Through the Refuge System, the Fish and Wildlife Service

has acquired millions of acres of environmentally rich lands,

lands which are to be preserved in their natural state: no

development, no mining, just mother nature’s original rec-

ipe without any artificial ingredients. These lands provide

a winter home to the thousands of migratory birds utilizing

the “Central Flyway”’ and support large populations of

Native North American wood ducks. U.S. Fish and Wildlife

Service, Wetlands of the United States: Current Status and

Recent Trends at 15 (1984).

Some of the land is acquired in fee simple; but since

the Fish and Wildlife Service merely seeks to prohibit

environmentally destructive activity on the land, much of

it is obtained in the form of leases and easements which

preclude development of the land. This method proves far

more economical in effectuating the goal of preventing

adulteration to the lands, because the government need

not buy the property and take title outright; it can accept

a nondevelopment easement—a promise by the owner to

refrain from developing the property in a manner incon-

sistent with wetland preservation—and thereby achieve the

goal of protecting the environmental status quo at a frac-

tion of the cost.

The Fish and Wildlife Service acquired the Texas wet-

lands at issue in this case precisely in this manner. Little

Sandy Hunting and Fishing Club donated a nondevelop-

ment easement on approximately 3800 acres of its land to

the Fish and Wildlife Service so that the character of the

wetlands would remain unchanged, undeveloped, in per-

petuity. These lands had been targeted by the Fish and

Wildlife Service for several years because of its particu-

larly rich natural attributes. Some studies rated the veg-

etation on Little Sandy’s land as ‘‘one of the most pristine

bottomland areas i[n] the state [of Texas].’’ The lands con-

sist of “old-growth timber,’’ including willow, oak, hickory,

gum, elm, ash, hackberry, palmetto, switchcane, and pos-

sum haw understory, and its bottomlands play host to such

dwellers as mallards, gadwalls, ringnecks, and wood ducks.

The Sabine River Authority and the Texas Water Con-

servation Association, cognizant that the federal govern-

ment’s acquisition of this land foreclosed the State of Texas

from taking the property by means of eminent domain,

were less than pleased to learn of the donation. They had

given serious consideration to using that land to construct

the Waters Bluff Reservoir, a $ 158 million, forty-five

thousand acre project along the Sabine River in Smith,

Upshur, and Wood Counties. Their plans for the construc-

tion of the reservoir, aimed at satisfying the anticipated

need for additional water over the next forty years, were

still in the preliminary stages: they had obtained none of

the necessary federal and state permits, had secured no

funding, and had not yet entered into any firm contracts

for the 300 thousand plus acre feet of water that the

reservoir would generate each year. Nevertheless, they

were dissatisfied with the turn of events and filed suit in

the Eastern District of Texas alleging that the Fish and

Wildlife Service had failed to comply with the procedural

requirements of NEPA by not preparing an Environmental

Impact Statement (an “EIS’’) in connection with its ac-

quisition of the Little Sandy non-development easement.

They alleged that the easement was interfering with their

long-term plan to take the property by eminent domain,

construct the Waters Bluff Reservoir, and thus insure that

the state’s water supply would not be placed in jeopardy

in the calendar year 2030. Invoking NEPA, they asserted

that the Fish and Wildlife Service’s acquisition of the ease-

ment constituted a “major federal action significantly af-

fecting the quality of the human environment.” 42.U.S.C.

§ 4332(2\C), thereby necessitating the preparation of an

EIS.

In a comprehensive opinion, 745 F.Supp. 388

(E.D.Tex.1990), the district court dismissed their claims by

way of summary judgment. The court reasoned that the

Fish and Wildlife Service had prepared an adequate En-

vironmental Assessment (the “EA”) and had issued a

“Finding of No Significant Impact” (““FONSI’) as a pre-

cursor to acquiring the easement. Concluding that there

was no corresponding change in the physical environment

flowing from the acquisition of the non-development ease-

ment, the district court held that the Fish and Wildlife

Service’s decision to forego an EIS was not arbitrary and

capricious. Jd. at 392-97. It dismissed the lawsuit. and this

appeal followed.

PHASE II

A preliminary issue in this case, indeed in every case,

is whether the party bringing the lawsuit has standing.

After rejecting on the merits plaintiffs’ challenge to the

Fish and Wildlife Service’s decision to forego an EIS, the

court below remarked that plaintiffs had no standing to

bring this lawsuit in the first place. It reasoned that:

The Court’s finding that the plaintiffs’ claims are not

within NEPA’s scope and that they are contrary to

NEPA’s purpose compels the conclusion that the

plaintiffs lack standing to assert a claim under NEPA.

The plaintiffs’ interest in constructing a reservoir is

unquestionably an interest that is subject to the pro-

visions of NEPA, but it is not an interest that NEPA

was designed to protect.

745 F.Supp. at 397. In essence, the district court concluded

that because the Fish and Wildlife Service was not obli-

gated under NEPA to prepare an EIS under the circum-

stances present in this case (a conclusion with which we

agree), the injuries alleged by the plaintiffs as a conse-

quence of the absence of an EIS were not within the zone

of interests protected by NEPA. With that conclusion we

disagree.

The standing inquiry has constitutional, statutory, and

judicially formulated components. North Shore Gas v. EPA,

930 F.2d 1239, 1242-43 (7th Cir.1991). It has as its origins

the constitutional requirement that federal courts only de-

cide cases or controversies. Constitution, Article III, § 2.

When we say that a particular plaintiff has no standing

to bring the lawsuit in the constitutional sense, we mean

that the plaintiff has not suffered an injury which is re-

dressible by the court. Allen v. Wright, 468 U.S. 737, 104

S.Ct. 3315, 82 L.Ed.2d 556 (1984). This inquiry pleces not

too heavy a burden on a prospective plaintiff because even

‘fa probabilistic benefit from winning a suit is enough ‘in-

jury in fact’ to confer standing’’ under the Constitution.

North Shore Gas, 930 F.2d at 1242.

From an Article III perspective, the plaintiffs have

standing. ‘‘Injury in fact is not confined to economic injury,

but may include injuries to aesthetics and well-being.” Save

Our Wetlands, Inc. v. Sands, 711 F.2d 634, 640 (5th

Cir.1983).

The procedural injury implicit in agency failure to

prepare an EJS—the creation of a risk that serious

environmental impacts will be overlooked—is itself a

sufficient ‘injury in fact’ to support standing, provided

this injury is alleged by a plaintiff having a sufficient

geographical nexus to the site of the challenged proj-

ect [such that they can] expect[ ] to suffer whatever

environmental consequences the project may have.

City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.1975);

accord Friends of the Earth v. U.S. Navy, 841 F.2d 927,

932, modified, 850 F.2d 599 (9th Cir.1988); see also South

East Lake View Neighbors v. Dept. of Housing and Urban

Development, 685 F.2d 1027, 1039 (7th Cir.1982) (constru-

ing City of Davis to hold that the “injury occurred with

the creation of a risk that potential environmental damage |

would go undiscovered’’); cf. North Shore Gas, 930 F.2d

at 1242 (‘fa probabilistic benefit from winning a suit is

enough ‘injury in fact’ to confer standing in the unde-

manding Article III sense’’); but see Greenpeace USA 1.

Stone, 748 F.Supp. 749, 755 (D.Hawaii 1990) (expressing

concern over whether a plaintiff with a geographical nexus

to project satisfies the injury in fact requirement by virtue

of a procedural injury alone), appeal dismissed as moot,

924 F.2d 175 (9th Cir.1991).

The Sabine River Authority has been charged by the

State of Texas with the weighty responsibility of man-

aging, conserving, and monitoring the waters of the Sabine

River in order to meet the ‘‘domestic uses of the people

in the district, including all necessary water supplies for

cities and towns.”’ Water Aux. Laws art. 8280-133, § 14(d).

It has alleged an economic injury (shortage of water sup-

ply) attendant to the Fish and Wildlife Service’s acquisition

of the Little Sandy Easement. The Texas Water Conser-

vation Association is an organization incorporated under

the laws of the State of Texas which has as its stated

mission the conservation of water resources of the state.

Its membership includes “river authorities, individuals,

firms, corporations, cities, water districts, public and pri-

vate agencies and groups dedicated to the task of con-

serving, developing, protecting and utilizing the water

resources of Texas for beneficial purposes.’’ This organi-

zational plaintiff has a “sufficient geographical nexus’ to

the Little Sandy property, and the interests at stake affect

the members of the organization such that the organization

has standing to bring the claims on their behalf. See Save

Our Wetland, Inc., 711 F.2d at 640 (organizational plaintiff

had standing because member of organization who fished

at site in question was “‘injured’’ by adverse aesthetic im-

10a

pact). The injuries that these parties allege relate to the

adverse environmental effects that they will experience as

a result of the Fish and Wildlife Service’s acquisition of

the Little Sandy easement. As the district court observed:

One effect of the [Fish and Wildlife Service]’s action

is that as long as the easement remains in the Na-

tional Wildlife Refuge System, [the Sabine River Au-

thority] cannot build the Waters Bluff Reservoir.

Although federal law provides certain procedures by

which land may be released from the Refuge System,

there is certainly a risk that [the Sabine River Au-

thority] may not convince either the Congress or the

Secretary of the Interior to relinquish the easement.

745 F.Supp. at 396 & n. 6. According to the plaintiffs,

the Sabine River Authority’s inability to condemn this

property and build the Waters Bluff Reservoir on that site

creates a substantial risk that the region will experience

water shortages some forty years in the future. Although

there is necessarily some speculation attendant to predic-

tions of this sort, the injuries alleged are not ‘‘too spec-

ulative to support their standing.” South East Lake View

Neighbors, 685 F.2d at 1035. While still in the early plan-

ning stages, plaintiffs were intent on going forward with

the construction of the Waters Bluff Reservoir to preter-

mit any potential water shortage problems; the Little

Sandy Easement has made that effort a virtual nullity.

We therefore find ‘‘a fairly traceable causal connection

between the defendant’s allegedly illegal conduct and the

plaintiffs purported injuries,’ id. at 1036, sufficient to

confer standing in the constitutional sense.

In the context of NEPA, however, the Supreme Court

has recently explained that beyond the constitutional

standing requirements, ‘“‘the plaintiff must establish that

the injury he complains of (his aggrievement, or the ad-

verse effect upon him) falls within the ‘zone of interests’

sought to be protected by the statutory provision whose

lla

violation forms the legal basis for his complaint.’’ Lujan

v. National Wildlife Federation, __U.S. —__, 110 S.Ct.

3177, 3186, 111 L.Ed.2d 695 (1990) (emphasis in original);

see also Greenpeace USA, 748 F.Supp. at 756 (Lujan “‘ap-

pears to heighten the requirements for establishing actual

injury for purposes of standing under NEPA.”’). ‘{T]he

only people who may sue to enforce a law are people who

belong to the class that the law was designed to protect.”

North Shore Gas, 930 F.2d at 1243. In other words, ‘‘only

intended beneficiaries of a statute can seek relief under

it.”’ Id. To illustrate, the Supreme Court posited that court

reporters are plainly aggrieved when an agency failed to

comply with a statutory provision that requires that all

proceedings be transcribed; nevertheless, because the par-

ties to the proceedings, and not the court reporters, are

the intended beneficiaries of the statutory provision, the

parties and not the court reporters would have standing

to challenge the agency’s non-compliance with the statute.

Lujan, 110 S.Ct. at 3186.

We are persuaded that the injuries alleged by the

plaintiffs in their complaints—harmful effects on the qual-

ity and quantity of East Texas’ water supply—’’are among

the sorts of interests’’ that NEPA was specifically de-

signed to protect. Lujan, 110 S.Ct. at 3187. These alleged

injuries fall squarely within the class of injuries that NEPA

safeguards: the circuit courts, to be sure, are flooded with

cases which elucidate that water quality and water supply

are prototypically matters of great environmental concern.

E.g., Olmsted Citizens for a Better Community, 793 F.2d

201, 205 (8th Cir.1986) (a federal action which ‘“‘poses a

threat to the physical resources of the area because of

anticipated ... water supply problems’’ must be preceded

by an EIS); Environmental Defense Fund, Inc. v. Andrus,

596 F.2d 848, 851-53 (9th Cir.1979) (holding that an EIS

was required ‘‘to evaluate the environmental consequences

of [the] decision [to divert water to industrial use]’’); City

of Davis v. Coleman, 521 F.2d 661, 671-72 (9th Cir.1975)

12a

(allegations in complaint ‘“‘that the planned industrial de-

velopment . . . may adversely affect the quality and quan-

tity of the city water supply’ established injury in fact

within the zone of interests of NEPA). Indeed, NEPA

itself articulates that the protection of the water quality

and supply is an important concern of the statutory

scheme. See 42 U.S.C. §§ 43821, 4331(c); see also Metro-

politan Edison Co. v. People Against Nuclear Energy, 460

U.S. 766, 103 S.Ct. 1556, 1560-61, 75 L.Ed.2d 534 (1983)

(quoting from statements of two principal sponsors of

NEPA which identify water supply and quality as a con-

cern of NEPA). Moreover, these plaintiffs are the proper

plaintiffs to raise these claims. Although ‘‘the intended

beneficiaries of NEPA are individual citizens ... the stat-

ute expressly contemplates that state and local govern-

ments are to play an important role in the effectuation of

national environmental policy.”” City of Davis, 521 F.2d at

672 (citing 42 U.S.C. §§ 4331(a), 43382(2\C), 4332(2\F),

4341(4), 4345(1)).

This is not a case brought by a disappointed contractor

who alleges that he has been injured because he would

have been hired to build the Waters Bluff Reservoir had

the Fish and Wildlife Service not accepted the negative

easement. Like the court reporter example posited in Lu-

jan, the contractor, though arguably aggrieved as a result

of the Fish and Wildlife Service’s acceptance of the neg-

ative easement, would not have standing under the ‘‘zone

of interests” test because NEPA was not designed to pro-

tect contractors’ rights: it was designed to protect the

environment. Perhaps the best way to illustrate the point

is to put the proverbial cart before the horse. If, contrary

to our holding on the merits, NEPA did require the Fish

and Wildlife Service to prepare an EIS in connection with

the Little Sandy easement, we would still have to consider

whether these plaintiffs have standing to challenge the

Fish and Wildlife Service’s non-compliance. We think it is

quite plain that the Sabine River Authority and the Texas

13a

Water Conservation Association would (and do) have

standing to bring a lawsuit because the alleged harm flow-

ing to these plaintiffs from the defendant’s non-compliance

with NEPA is of a kind with which NEPA is concerned.

PHASE III

This case arises under the network of NEPA, a statute

drafted to ensure that federal agencies “‘carefully consider

detailed information concerning significant environmental

impacts,’ and at the same time “guarantee{ ] that the

relevant information will be made available to the larger

audience that may also play a role in both the decision-

making process and the implementation of that decision.”’

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989); accord North

Buckhead Civic Ass’n v. Skinner, 903 F.2d 15338, 1540

(11th Cir.1990). It is a procedural statute that demands

that the decision to go forward with a federal project

which significantly affects the environment be an environ-

mentally conscious one. The statute does not command the

agency to favor an environmentally preferable course of

action, only that it make its decision to proceed with the

action after taking a “‘hard look at environmental conse-

quences.”’ Robertson, 109 S.Ct. at 1846 (quoting Kleppe v.

Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730

n. 21, 49 L.Ed.2d 576 (1976)). Indeed, NEPA does not

prohibit the undertaking of federal projects patently de-

structive of the environment; it simply mandates that the

agency gather, study, and disseminate information con-

cerning the projects’ environmental consequences. ‘‘Other

statutes may impose substantive environmental obligations

on federal agencies, but NEPA merely prohibits unin-

formed—rather than unwise—agency action.” Jd.

How much information the agency must process is the

subject of this litigation. NEPA instructs that federal agen-

cles:

l4a

include in every recommendation or report on pro-

posals for legislation and other major Federal actions

significantly affecting the quality of the human en-

vironment, a detailed statement by the responsible

official on—

(i) the environmental impact of the proposed action,

[and]

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented... .

42 U.S.C. § 4832(2\(C). Thus, NEPA directs federal agen-

-cies to prepare what is commonly known in the industry

as an Environmental Impact Statement (an “EIS’’) when

it engages in “major Federal action[ ] significantly af-

fecting the environment.”’

‘“‘An environmental impact statement is intended to

detail the environmental and economic effects of any

proposed federal action so that those not directly in-

volved can understand and give meaningful consid-

eration to and make appropriate comment on the

factors involved. It also ensures that the decision-

maker give serious weight to environmental factors

in making discretionary choices.”

State of Louisiana v. Lee, 758 F.2d 1081, 1084 (5th

Cir.1985). An EIS is “not required for non major action

or a major action which does not have significant impact

on the environment.” Sierra Club v. Hassell, 636 F.2d

1095, 1097 (5th Cir. Unit B 1981) (emphasis added).

To assist federal agencies in resolving whether they must

prepare an EIS, the federal Council on Environmental

Quality (““CEQ’’) has issued regulations to which these

agencies can turn for guidance. Sierra Club v. March, 769

F.2d 868, 870 (1st Cir.1985). These regulations are entitled

to substantial deference, Robertson, 109 S.Ct. at 1848, and

“are binding on federal agencies.”’ Fritiofson v. Alexander,

772 F.2d 1225, 1236 (5th Cir.1985).

15a

The CEQ regulations permit federal agencies to make

a preliminary “Environmental Assessment” (‘‘EA’’)

aimed at determining whether the environmental ef-

fects of a proposed action are “‘significant.’’ 40 C.F.R.

§§ 1501.3, 1501.4, 1508.9, 1508.27 (1984). According

to these regulations, the EA is a “‘concise’’ document

that ‘‘briefly’’ discusses the relevant issues and either

reaches a conclusion that preparation of an EIS is

necessary or concludes with a “Finding of No Sig-

nificant Impact’’ (called in environmental jargon, a

“FONSI’). Jd. §§ 1508.9, 1508.13.

Sierra Club v. March, 769 F.2d at 870. Thus, ‘t]he pur-

pose of an EA is to ‘provide sufficient evidence and anal-

ysis for determining whether to prepare an [EIS].’ ”’

Fritiofson, 772 F.2d at 1236 (quoting 40 C.F.R.

§ 1508.9(a\1)). The EA is “‘a rough- cut, low-budget en-

vironmental impact statement designed to show whether

a full-fledged environmental impact statement—which is

very costly and time-consuming to prepare and has been

the kiss of death to many a federal project—is necessary.”’

Cronin v. U.S. Dept. of Agriculture, 919 F.2d 439, 443

(7th Cir.1990). The EA will come to one of two findings:

either that the project requires the preparation of an EIS

to detail its environmental impact, or that the project will

have no significant impact (a “FONSI’’) necessitating no

further study of the environmental consequences which

would ordinarily be explored through an EIS. Fritiofson,

772 F.2d at 1236; Marsh, 769 F.2d at 870.

When, as in this case, the agency concludes that the

preparation of an EIS is not required based on a FONSI,

an aggrieved party may challenge the decision in federal

court under the Administrative Procedures Act. 5 U.S.C.

§ 706(2XA). Before today, our court instructed that a re-

viewing court should apply the moderately deferential

“reasonableness” standard—rather than the highly defer-

ential “arbitrary and capricious” standard adopted by other

16a

circuits—in reviewing an agency’s decision to forego an

EIS. See Fritiofson, 772 F.2d at 1237. However, in Marsh

v. Oregon Natural Resources Council, 490 U.S. 360, 109

S.Ct. 1851, 104 L.Ed.2d 377 (1989) (“Oregon Natural’)

the Supreme Court held that an agency’s decision not to

prepare a supplemental EIS is reviewable under the “ar-

bitrary and capricious” standard. This intervening decision

by the Supreme Court warrants the abandonment of the

“reasonableness” standard.' Even though Oregon Natural

involved an agency’s decision not to prepare a supplemen-

tal EIS as opposed to an agency’s decision not to prepare

the original EIS, the “legal standard for determining when

a supplemental EIS is required is ‘essentially the same as

the standard for determining the need for an original

KIS.’ ” Fritiofson, 772 F.2d at 1289 n. 8 (citation omit-

ted). Oregon Natural has plainly emasculated our prece-

dent applying the reasonableness standard with respect to

the review of an agency’s decision to forego a supplemental

EIS. See Oregon Natural, 109 S.Ct. at 1861 n. 23 (citing

with disapproval our decision in Sierra Club v. Froelhlke,

816 F.2d 205, 210 (5th Cir.1987)). We believe that it has

similarly undercut our precedent applying the reasonable-

ness standard with respect to an agency’s decision to for-

ego the original EIS. See Lockhart v. Kenops, 927 F.2d

1028, 1032 (8th Cir.) (holding that the intervening decision

of Oregon Natural undercut Eight Circuit precedent ap-

plying the reasonableness standard with respect review of

an agency’s decision to forego preparation of an original

EIS), cert. denied, __U.S. __, 112 S.Ct. 186, 116 L.Ed.2d

148 (1991). The standard of review is limited, therefore,

to the “arbitrary and capricious” standard. Id.; see also

North Buckhead Civic Ass’n, 903 F.2d at 1538 (adopting

‘The Fritiofson panel rejected an invitation to abandon the reason-

ableness standard in favor of the “arbitrary and capricious’ standard

adopted by other circuits, recognizing that it could only do so if an

intervening Supreme Court decision mandated as much.

17a

“the arbitrary and capricious standard when reviewing

agency action in NEPA cases’’).?

Under this highly deferential standard of review, a re-

viewing court has the “least latitude in finding grounds

for reversal.’’ North Buckhead Civic Ass’n, 903 F.2d at

1538. It may not substitute its judgment for that of the

agency, but must studiously review the record to ensure

that the agency has arrived at a reasoned judgment based

on a consideration and application of the relevant factors.

Id.; Oregon Natural, 109 S.Ct. at 1861. Where conflicting

evidence is before the agency, the agency and not the

reviewing court has the discretion to accept or reject from

the several sources of evidence. The agency may even rely

on the opinions of its own experts, so long as the experts

are qualified and express a reasonable opinion. The re-

viewing court may be inclined to raise an eyebrow under

such circumstances, but it must show the proper respect

for an agency’s reasoned conclusion even if the reviewing

* We recognize that the Eighth Circuit has held that Oregon Natural

does not control the standard of review in a case where the issue

involved is the threshold one of whether NEPA even applies at all.

Goos v. I.L.C., 911 F.2d 1283, 1292 (8th Cir.1990). If an agency de-

termines that NEPA does not apply in the first instance, and the agency

makes that determination without preparing an EA and without making

a finding of no significant impact, the Eighth Circuit applies a rea-

sonableness standard, not Oregon Natural’s arbitrary and capricious

standard. Id. We need not concern ourselves with these distinctions

even though there is a substantial question presented in this case as

to whether NEPA applies at all; the Fish and Wildlife Service decided

to forego an EIS ‘‘after assuming the applicability of NEPA, after

preparing an EA and after determining that there was no significant

[environmental] impact.” Goos, 911 F.2d at 1292. Thus, the arbitrary

and capricious standard of review applies. Although it is arguably a

more lenient standard than the reasonableness test, F'ritiofson, 772 F.2d

at 1237-38, the differences between the two standards is not “‘of great

pragmatic consequence.’’ Oregon Natural, 109 S.Ct. at 1861 n. 23

(“[Ojur decision today will not require a substantial reworking of

NEPA.’’). And under either standard, we would affirm the judgment

below.

18a

court finds the opinions of other experts equally or more

persuasive. Oregon Natural, 109 S.Ct. at 1861.

A reviewing court is to review the administrative rec-

ords as well as other evidence to determine whether

the agenc[y] adequately considered the values set forth

in NEPA and the potential environmental effects of

the project before reaching a decision on whether an

environmental impact statement was necessary. If the

agency[y] engaged in this analysis and reasonably con-

cluded on the basis of [its] findings that an impact

statement was not required, [its] determination[ ] will

be upheld.

Hassell, 636 F.2d at 1097-98.°

When a court like ours is asked to review the decision

of a district court which has sat as the reviewing court

of first instance, the standard of-review that we apply

will vary depending on the course of proceedings below.

If the district court has conducted an evidentiary hearing,

and has drawn factual inferences and made credibility de-

terminations, we must give great deference to the district

court’s conclusions.

A court of appeals review of a district court review

of an administrative agency’s record is indeed an

“awkward legal animal,” but when the district court’s

judgment turns on factual matters, or upon the tes-

timony of witnesses, or even upon lengthy evidentiary

proceedings, the court of appeals should hesitate to

reverse.

’ Hassell applied the “‘reasonableness’’ standard. Nevertheless, we be-

lieve that the inquiry under the “arbitrary and capricious standard”’ is

clearly not more rigorous (though also only slightly more deferential)

than that articulated in Hassell. See Oregon Natural, 109 S.Ct. at 1861

n. 23 (‘[T]he difference between the ‘arbitrary and capricious’ and

‘reasonableness’ standards is not of great pragmatic consequence.”’).

19a

North Buckhead Civic Ass’n, 903 F.2d at 1539. Where. as

here, the district court has resolved the case by way of

summary judgment, our review of the district court’s con-

clusions is plenary. We undertake the same task as the

district court: we review the materials submitted to the

district court (which will include the agency record) and

determine whether the agency’s conclusions were arbitrary

and capricious. Marsh, 769 F.2d at 872 (lst Cir.1985).

Because the district court’s review pursuant to a summary

judgment motion cannot turn on credibility determinations

or conflicting factual inferences, International Shortstop,

Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir.1991).

we are in precisely the same position as the district court

and can evaluate the record de novo.

PHASE IV

The Fish and Wildlife Service concluded that by ac-

‘cepting the easement from Little Sandy, it did not un-

dertake a major federal action which significantly affected

the environment. It prepared an EA which “adequately

considered the environmental consequences of its actions.”

745 F.Supp. at 402. The EA came to a finding of no

significant impact (FONSI), and accordingly, the Fish and

Wildlife Service did not find it necessary to prepare an

EIS in connection with the acquisition of the easement.

After a painstaking review of the agency record, the dis-

trict court concluded that there was no clear error in the

Fish and Wildlife Service’s decision. We agree. As the

district court observed:

The [Fish and Wildlife Service]’s action in this case

does not alter the environmental status quo; it does

not cause any change in the physical environment.

Indeed the purpose of the acquisition of the easement

is to foreclose any change in the physical environment

of a particular wetland site. As the Court observed

in National Association of Property Owners [v. United

States], NEPA does not require a federal agency to

20a

prepare an EJS in order ‘‘to leave nature alone.’’ 499

F.Supp. [1223] at 1265 [D.C.Minn. 1980)]. NEPA may

require an EIS whenever a reservoir is built, but

NEPA does not require preparation of an EIS when-

ever a reservoir is not built.

745 F.Supp. at 394. The district court recognized that the

acquisition of the easement by the Fish and Wildlife Ser-

vice did not effectuate any change to the environment

which would otherwise trigger the need to prepare an EIS.

‘An “EIS is not required . . . when the proposed federal

action will effect no change in the status quo.”’ Burbank

Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116 (9th

Cir. 1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67

L.Ed.2d 614 (1981). Simply put, we hold that the acqui-

sition of a negative easement which by its terms proiibits

any change in the status quo does not amount to ‘‘major

Federal action{ ] significantly affecting the quality of the

human environment.” 42 U.S.C. § 4332(2\(C); see Burbank

Anti-Notse Group, 623 F.2d at 116-17 (no EIS required

where FAA provided federal financial assistance in con-

nection with the purchase of an airport); Sierra Club ».

Marsh, 692 F.Supp. 1210, 1221 (S.D.Cal.1988) (‘It would

be inconsistent with NEPA’s purpose to allow the city to

use NEPA to obstruct the implementation of a settlement

which will protect endangered species.’’). An EIS need not

discuss the environmental effects of continuing to use land

in the manner which it is presently being used. Upper

Snake River v. Hodel, 921 F.2d 232, 235 (9th Cir.1980)

(citing Burbank Anti-Noise Group, 623 F.2d at 116); see,

e.g., Hassell, 636 F.2d at 1099 (rebuilding bridge destroyed

in hurricane did not require preparation of EIS under reg-

ulations then in effect); Committee for Auto Responsibility

v. Solomon, 603 F.2d 992, 1003 (D.C.Cir.1979) (no EIS

required when government leased parking lot to new park-

ing management because no change in the status quo),

cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d

599 (1980).

2la

The Supreme Court’s decision in Metropolitan Edison

Co. v. People Against Nuclear Energy makes clear that

the inquiry in NEPA cases is whether the federal action

at issue is ‘‘proximately related to a change in the physical

environment.” 103 S.Ct. at 1561 (emphasis added). The

acquisition of a negative easement which prohibits devel-

opment does not result in the requisite ‘“‘change”’ to the

physical environment. Of course, when the government

conveys property to, or exchanges land with, a private

party that plans to develop the land, an EIS is necessary

because the conveyance of property is precipitating a

change in the physical complexion of the land. Lockhart

v. Kenops, 927 F.2d at 1033 (citing National Forest Pres-

ervation Group v. Butz, 485 F.2d 408, 411-12 (9th

Cir.1973)); Bob Marshall Alliance v. Hodel, 852 F.2d 1223.

1227 (9th Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct.

1340, 103 L.Ed.2d 810 (1989); Conservation Law Foun-

dation of New England, Inc. v. General Services Admin-

istration, 707 F.2d 626, 633 (1st Cir.1983). But by merely

accepting title to the property—or, as in this case, ac-

cepting a negative easement which precludes any devel-

opment of the land whatsoever—the government is not

undertaking a project that changes the character or func-

tion of the land. See Ono v. Harper, 592 F.Supp. 698, 701

(D.Hawaii 1983) (no EIS required where proposed transfer

of title would not cause any change in the physical en-

vironment). We view the Fish and Wildlife Service’s ‘‘ac-

tion” in accepting the negative easement as tantamount

to “inaction.” See Defenders of Wildlife v. Andrus, 627

F.2d 1238, 1243 (D.C.Cir.1980) (no EIS required when fed-

eral government decides not to exercise its authority to

prevent the State of Alaska from killing wolves on federal

land); State of Alaska v. Andrus, 591 F.2d 587, 541 (9th

Cir.1979) (same); cf. Bunch v. Hodel, 793 F.2d 129, 135-

36 (6th Cir.1986) (abdication of the Fish and Wildlife Ser-

vice’s obligations under the terms of a lease and the Mi-

22a

gratory Bird Conservation Act could not be viewed as

‘‘inaction’’).

The agency came to a finding of no significant envi-

ronmental impact, and we detect no error in that forecast.‘

“The court finds it unlikely that a no impact finding would

be held unreasonable where the government seeks to ac-

quire some additional parcels of land for environmental

mitigation purposes.” Sierra Club v. March, 692 F.Supp.

at 1221. The land is earmarked as a wildlife habitat and

migratory bird refuge. We agree with the Fish and Wild-

life Service and the district court that this intended ‘‘use”’

of the Little Sandy property has no significant environ-

mental impact. On this point, we note that we are not

altogether persuaded that the anticipated harm to the East

Texas water supply can be precisely linked to the federal

action at issue here. Although for purposes of standing

we have held that the plaintiffs have established an injury

in fact sufficient to bring these claims, an EIS is only

necessary where there is “reasonably close causal rela-

tionship between a change in the physical environment and

the effect at issue.’ Metropolitan Edison, 103 S.Ct. at

1561. Aside from the absence of any “change’”’ in the

physical environment, we entertain serious doubts as to

whether the adverse impact on water quality and supply

expected in the year 2030 can be attributed to the Fish

and Wildlife Service’s acquisition of the Little Sandy ease-

ment. In our view, plaintiffs seek to stretch the parameters

of predictability to their limits. They ask for environmental

clairvoyance, though the agency personnel—and we

judges—are but mere mortals.

‘Ironically, neither does the defendant-intervenor Sierra Club, an

environmental group which for the first time, apparently, has advocated

against the need for an EIS.

23a

We have given the record more than just a birds-eye

view, and finding no reason to migrate from the district

court’s judgment, we take refuge in its nest.

AFFIRMED.

—

24a

APPENDIX B

United States District Court,

E.D. Texas,

Texarkana Division.

No. TX-87-36-CA.

SABINE RIVER AUTHORITY,

Plaintiff,

Texas Water Conservation Association,

Plaintiff-Intervenor,

UNITED STATES DEPARTMENT OF INTERIOR, Donald

Paul Hodel, in his official capacity as Secretary of In-

terior, United States Fish and Wildlife Service, Frank

H. Dunkel, in his official capacity as Regional Director

of the Fish and Wildlife Service, and Little Sandy Hunt-

ing and Fishing Club,

Defendants,

The Sierra Club and the National Audubon Society,

Defendants-Intervenors.

Aug. 13, 1990.

Action was brought challenging the Fish and Wildlife

Service’s compliance with the National Environmental Pol-

icy Act in connection with the proposed acquisition of a

conservation easement on wetlands habitat. On cross mo-

tions for summary judgment, the District Court, Paul N.

Brown, J., held that (1) the proposed acquisition did not

change the status quo or have a detrimental impact on

the environment and, thus, no environmental impact state-

25a

ment was necessary; (2) the environmental assessment pre-

pared by the Fish and Wildlife Service gave adequate

consideration to the need for action, to alternatives, and

to comments received from other state and federal agen-

cies; and (8) the general plan under which the Service

would acquire easements to protect wetlands habitat was

not a “‘proposal’’ for major federal action that would re-

quire an environmental impact statement.

Claims dismissed.

William H. Burchette, Christine Ryan, Jorden Schulte

& Burchette, Washington, D.C., and Carl Roberts, Lo-

ngview, Tex., Frank R. Booth, Booth & Newsome, Austin,

Tex., for Sabine River Authority and Texas Water Con-

servation Ass’n, respectively.

Ruth Harris Yeager, First Asst. U.S. Atty., Tyler, Tex.,

Lisa Hemmer, U.S. Dept. of Justice, Washington, D.C.,

Joseph I. Worsham, Dallas, Tex., for Federal defendants

and Little Sandy Club, respectively.

Wendy S. Dinner, Washington, D.C., for Sierra Club

and National Audubon Society.

MEMORANDUM OPINION AND ORDER

PAUL N. BROWN, District Judge.

Pending before the Court are Motions for Summary

Judgment filed by all parties. After carefully reviewing all

of the motions and supporting briefs, the lengthy admin-

istrative record, and the applicable law, the Court finds

that the motions of the defendants should be granted and

those of the plaintiffs denied.

I. BACKGROUND

The dispute in this case concerns the decision of the

Department of the Interior’s Fish and Wildlife Service

26a

(‘“FWS’’) to accept a conservation easement on 3800 acres

of land owned by the Little Sandy Hunting and Fishing

Club (‘‘Club’’). The FWS’s acquisition of this easement

conflicts with the plans of plaintiff Sabine River Authority

(‘“SRA’’) to construct the Waters Bluff Reservoir. If con-

structed, the reservoir would inundate the lands encom-

passed by the easement.

Before acquiring the easement, the FWS prepared a

draft environmental assessment (‘“‘EA’’) of the proposed

acquisition pursuant to Department of Interior regulations

implementing the review process mandated by the National

Environmental Policy Act, 42 U.S.C. § 4832 (“NEPA’’).

(AR. P).! The FWS also conducted a public hearing on the

proposed acquisition. (AR. I). Thereafter, the FWS also

issued a “Finding of No Significant Impact” (“FONSIT’’)

setting forth the FWS to prepare an environmental impact

statement (“‘EIS’’) concerning its acquisition of the ease-

ment. (AR. G-79). The FWS then accepted the easement.

Plaintiffs’ Claims

SRA contends that the FWS’s FONSI and decision not

to prepare an EIS concerning its acquisition of the ease-

ment violated the provisions of NEPA. SRA claims that

the FONSI is erroneous because acquisition of the ease-

ment is a “‘major Federal action[ } significantly affecting

the quality of the human environment”’ that requires the

preparation of an EIS. SRA also claims that the FWS’s

EA is inadequate in several respects and that this matter

should be remanded tw the FWS for further consideration.

Finally, SRA alleges that the acquisition of the easement

violated the Fish and Wildlife Act, 16 U.S.C. § 742a et

seq. and the Refuge Recreation Act, 16 U.S.C. § 460k et

seq., because the terms of the easement do not provide

for a right of access for the public.

‘ “AR” refers to the Administrative Record.

27a

Plaintiff-Intervenor Texas Water Conservation Associ-

ation (““TWCA’’) also contends that the FWS should have

prepared an EIS concerning its acquisition of the ease-

ment. In addition, TWCA asserts that the FWS’s Texas

Bottomlands Hardwood Preservation Program (‘‘Preser-

vation Program’’) is itself a ‘“‘major Federal action{ ] sig-

nificantly affecting the quality of the human environment’”’

and that the FWS should have prepared an EIS concerning

the Preservation Program.

The FWS and the Defendant-Intervenors Sierra Club

and National Audubon Society contend that the FONSI is

correct since the easement preserves the ‘‘environmental

status quo” by prohibiting development on the land en-

compassed by the easement. The FWS also contends that

its EA was adequate and that it was not required to pre-

pare an EJS concerning the Preservation Program. Finally,

the FWS asserts that the terms of the easement do not

violate the provisions of either the Fish and Wildlife Act

or the Refuge Recreation Act.

Il. STANDARD OF REVIEW

The standard of review that this Court must apply to

this case is set forth in State of Louisiana v. Lee, 758

F.2d 1081 (5th Cir.1985), cert. den., 475 U.S. 1044, 106

S.Ct. 1259, 89 L.Ed.2d 570 (1986).

NEPA requires the preparation of an [EIS] whenever

a major federal action significantly affecting the qual-

ity of the human environment is proposed. . . . Judicial

review of an agency’s decision not to file an [EIS] is

governed by the rule of reasonableness ... whether

the agency[’s] decision not to develop an impact state-

ment is reasonable and made objectively and made in

good faith on a reviewable environmental record. ...

If the decision is reasonable, the determination must

be upheld.

Id. at 1083.

28a

The plaintiffs’ burden in presenting a NEPA claim is

also well- established.

[T]he court must determine whether the plaintiff has

alleged facts which, if true, show that the recom-

mended project would materially degrade any aspect

of environmental quality ... If the court concludes

that no environmental factor would be significantly

degraded by the project, [the] determination not to

file the [EIS] should be upheld. On the other hand,

if the court finds that the project may cause a sig-

nificant degradation of some human environmental

factor (even though other environmental factors are

atfected beneficially or not at all), the court should

require the filing of an impact statement. ...

Id. at 1084.

The plaintiff ‘‘must establish only that the [defendant] was

unreasonable in concluding there was no reasonable pos-

sibility that the proposed action would significantly de-

grade any environmental factor.” Jd. at 1085.

The Supreme Court has held that an agency’s decision

not to file an EIS should be reviewed under the ‘‘arbitrary

and capricious” standard. Marsh v. Oregon Natural Re-

sources Council, 490 U.S. 360, , 109 S.Ct. 1851, 1860,

104 L.Ed.2d 377 (1989). The Court suggested that there

is little or no difference between this standard and the

“reasonableness” standard that had been applied hereto-

fore by courts in most of the circuits, including the Fifth

Circuit. 490 U.S. at__., 109 S.Ct. at 1861 n. 23. In

applying this standard of review, a court ‘“‘must consider

whether the decision [not to prepare an EIS] was based

on a consideration of the relevant factors and whether

there has been a clear error in judgment’’. 490 U.S. at .

, 109 S.Ct. at 1861.

An agency’s decision not to prepare an EIS may be

erroneous for one of two different reasons. The evidence

29a

in the record may indicate that, “‘contrary to the FONSI,

the agency’s proposed action may have a significant impact

on the human environment’, or the record may show that

the agency’s NEPA review process was “flawed in such

a manner that it cannot yet be said whether the [proposed

action] may have a significant impact’’. F’ritiofson v. Alex-

ander, 772 F.2d 1225, 1238 (5th Cir.1985). If a court finds

that the proposed action may have a significant impact,

the court should order the agency to prepare an EIS. /d.

On the other hand, should the court determine that the

agency’s review was inadequate, the court should remand

the case to the agency for further proceedings to correct

the inadequacies. Jd.

III. REVIEW OF THE FONSI

An agency need not prepare an EIS for actions that do

not ‘‘significantly affect{ ] the quality of the human envi-

ronment’. Citizen Advocates for Responsible Expansion,

Inc. v. Dole, 770 F.2d 423, 432 (5th Cir.1985). In deter-

mining whether particular agency actions “‘significantly af-

fect[ ] the quality of the human environment’, courts have

analyzed an agency’s action to determine whether those

actions may alter the ‘environmental status quo”’ or cause

a “significant degradation of some human environmental

factor’.

A federal agency proposing an action must prepare an

environmental impact statement if that action may cause

‘“‘a change in the [environmental] status quo.” Sierra Club

v. Hassell, 636 F.2d. 1095, 1099 (5th Cir.1981).2 Any agency

action that “‘may cause a significant degradation of some

human environmental factor’’ also requires the preparation

2 See also Sierra Club v. F.E.R.C., 724 F.2d 1506, 1510 (9th Cir.19850;

Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1002-03

(D.C.Cir.1979), cert. den., 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d

599 (1980); Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115,

116-17 (9th Cir.1980, cert. den., 450 U.S. 965, 101 S.Ct. 1481, 67

L.Ed.2d 614 (1981).

30a

of an EIS. State of Louisiana v. Lee, 758 F.2d at 1086.

Lee and Hassell do not set forth different tests, however,

since any action that “‘may cause a significant degrada-

tion’ of the environment certainly may cause “a change

in the environmental status quo’’. Whether a federal agen-

cy’s action ‘‘may cause a significant degradation of some

human environmental factor’ is analyzed in light of the

“environmental status quo’ existing at the time of the

proposed action. Jd.

The principle underlying the determination of whether

an agency’s action may “‘significantly affect[ ] the quality

of the human environment’, by altering the “‘environmen-

tal status quo” or causing ‘‘a significant degradation of

some human environmental factor” is that NEPA applies

only to those federal actions whose effects may cause

changes in the physical environment. NEPA’s legislative

history shows that Congress was only concerned with the

effects of federal actions that may cause changes in the

physical environment. ‘‘What is involved [in NEPA] is a

congressional declaration that... . we will not intentionally

initiate actions which do irreparable damage to the air,

land, and water....’’ Metropolitan Edison Co. v. People

Against Nuclear Energy, 460 U.S. 766, 772-73, 103 S.Ct.

1556, 1560, 75 L.Ed.2d 534 (1983), citing, 115 Cong.Rec.

40416 (1969XEmphasis original). Indeed, a change in the

physical environment is the sine qua non of any action

that alters the “environmental status quo” or causes a

“significant degradation of some human environmental fac-

tor .

Courts have recognized that federal actions that do not

change the status quo of the physical environment do not

require the preparation of an EIS under NEPA.’ For ex-

ample, in Ono v. Harper, 592 F.Supp. 698, 701 (D. Hawaii

1983), local governmental authorities sued to block the

3 See Cases cited at note 2.

arrareet Sia «Sanna cael ann

3la

transfer of federally owned land to private individuals. The

Court stated that “‘the focus of an [EIS] is the change in

the physical environment caused by the federal action at

issue’’ and dismissed the local authorities’ NEPA claim

because the authorities had not alleged that the transfer

of title to the land would cause any change in the physical

environment. Jd. at 701. In National Association of Prop-

erty Owners v. United States, 499 F.Supp. 1223

(D.Minn.1980), affd, 660 F.2d 1240 (8th Cir.1981), cert.

den., 455 U.S. 1007, 102 S.Ct. 1645, 71 L.Ed.2d 876 (1982),

the district court rejected a challenge to the implemen-

tation of restrictions’ on recreational activities in a fed-

erally-designated wilderness area under the Boundary

Waters Canoe Area Wilderness Act, based upon the claim

that an EIS was required before the restrictions could be

implemented. 499 F.Supp. at 1264-66. The Court held that

implementation of the restrictions on activities in the wil-

derness area did not “significantly affect{] the quality of

the human environment”. Jd. at 1265.

(T]he Secretary’s implementation of the Act enables

no person to significantly affect the Wilderness. In

fact, plaintiffs’ major complaint is simply that Con-

gress’ mandate to the Secretary will effectively close

portions of the Wilderness. ... In essence, plaintiffs’

claim is that the Department of Agriculture must pre-

pare an EIS in order to leave nature alone. The Court

is not moved by this argument.

Id.

Finally, the principle that NEPA applies only to those

federal actions that may cause changes in the physical

environment is supported by the corollary principle that

NEPA does not require an agency to consider those pc-

tential effects of a proposed action that do not have a

“reasonably close causal relationship [to] a change in the

physical environment caused by the major federal action

at issue’’. Metropolitan Edison, 460 U.S. at 774, 103 S.Ct.

32a

at 1561. ‘T]he Congressional concerns that led to the

enactment of NEPA suggest{] that the terms ‘environ-

mental effect’ and ‘environmental impact’ in [NEPA] be

read to include a requirement of a reasonably close causal

relationship between a change in the physical environment

and the effect at issue.’ Jd. at 774, 103 S.Ct. at 1561.

Accordingly, any alleged effects of an agency’s action that

do not have a reasonably close causal relationship to a

change in the physical environment caused by the agency’s

action are not within the scope of NEPA and can not form

the basis of a NEPA claim.

In summary, whether the FWS should have prepared

an EIS concerning its acquisition of the conservation ease-

ment depends upon whether the FWS’s action is one that

may ‘“‘significantly affect{] the quality of the human en-

vironment”’, which, in turn, depends (1) whether the FWS’s

action may cause “a significant degradation of some hu-

man environmental factor” through a change in the phys-

ical environment, and (2) whether the allegedly significant

effects of the FWS’s action have a reasonably close causal

relationship to any change in the physical environment

caused by the FWS’s action.

No Change in the Status Quo

The FWS’s action in this case does not alter the en-

vironmental status quo; it does not cause any change in

the physical environment.‘ Indeed the purpose of the ac-

quisition of the easement is to foreclose any change in the

‘The FONSI issued by the FWS is also consistent with FWS reg-

ulations that categorically exclude from the NEPA review process

[t]he acquisition of land in accordance with the Service’s proce-

dures, when the acquisition is from a willing seller, the acquisition

planning process has been performed in coordination with the

affected public and continuance of essentially the existing use is

planned.

Department of the Interior Department Manual, 30 AM 2, Ex. 4, 516

DM 6 App. 1, 1.4A(4) (4/30/84).

33a

physical environment of a particular wetland site. As the

Court observed in National Association of Property Own-

ers, NEPA does not require a federal agency to prepare

an EIS whenever a reservoir is not built.

Under State of Louisiana v. Lee, the plaintiffs’ burden

in this case is to allege facts which, if true, would show

that the FWS’s action may cause ‘‘a significant degra-

dation of some human environmental factor” through a

change in the physical environment. The plaintiffs have

failed to sustain this burden. The Court finds that when

the FWS acquires an interest in land, such as a conver-

sation easement, for the express purpose of preserving the

land in its then-existing natural state, there is no reason-

able possibility that such action may cause “a significant

degradation of some human environmental factor” through

a change in the physical environment.

Absence of Causal Connection

As indicated by the Court in Metropolitan Edison, NEPA

requires that federal agencies consider only the effects of

actions that have a reasonably close causal relationship to

changes in the physical environment cause by those ac-

tions. The alleged “effects” of the FWS’s action in this

case are the “elimination” of a potential water supply-the

Waters Bluff Reservoir-and the risk that the area served

by the SRA will suffer water shortages in the future if

the reservoir is not built. The plaintiffs allege that

[a]lequisition of the Club easement and placement of

that easement in the refuge system immediately in-

jured the interests of the SRA and others of TWCA's

members by eliminating the Waters Bluff Reservoir

and setting in motion the effects that followed the

elimination of that water supply.

The harmful effect that the plaintiffs claim the FWS's

action will have on the environment is the result of what

——

the FWS’s action prevents SRA and others from doing.

Thus, the plaintiffs’ claim presents the converse of the

typical NEPA claim, which usually involves federal actions

that initiate or permit development of natural resources.

This case poses the novel question of whether NEPA re-

quires consideration of the effects of federal actions when

the effects of those actions are to foreclose development

or use of some natural resource. The answer to this ques-

tion is that NEPA does not require a federal agency to

consider such effects since those effects result from what

the federal action prohibits third parties from doing, arid

not from any ‘‘changes in the physical environment caused

by the federal action’’ itself. The cases cited by SRA and

TWCA to support their position are inapposite.

TWCA cites the case of Environmental Defense Fund,

Inc. v. Andrus, 596 F.2d 848 (9th Cir.1979) for the prop- |

osition that a change in the use of water resources caused

by federal action requires the preparation ef an EIS. In

Andrus, the Department of the Interior decided to imple-

ment a program of marketing substantial amounts of water

for industrial uses from two existing reservoirs. The di-

version of water resources affected both the prospects of

future industrial development and the amount of water

available for irrigation downstream from the reservoir. The

Court of Appeals held that the program was a “major

federal action” under NEPA that required the preparation

of an EIS. Jd. at 851-52. Andrus can be readily distin-

guished from this case on the following basis.

In Andrus, the diversion of existing water supplies from

two existing reservoirs had the effect of altering the

amount of water available to agricultural users in order

to allocate additional water resources for industrial users.

The federal action in Andrus clearly had an effect that

changed the physical environment. In this case, there is no

diversion of any existing water resources, and there is no

change in the physical environment as a result of the ac-

quisition of the easement by the FWS.

35a

The other cases cited by the plaintiffs for the proposition

that federal actions that may create ‘‘water-supply prob-

lems” always require the preparation of an EIS all concern

the potential effects that commercial or industrial devel-

opment may have upon water. supplies. See e.g. City of

Davis v. Coleman 521 F.2d. 661 (9th Cir.1975). Yet com-

mercial or industrial development can not take place ab-

sent some change in the physical environment. In Coleman,

the federal action at issue was the proposed construction

of a freeway interchange. The Court held in that case that

the City of Davis had standing to prosecute a claim under

NEPA since the city alleged that ‘‘the planned industrial

development which the interchange will make possible may

adversely affect the quality and quantity of the city water

supply because of increased use and the danger of con-

tamination by industrial wastes’’. Jd. at 671. Commercial

or industrial development and preservation are not syn-

onymous under NEPA, and the FWS’s acquisition of a

conservation easement does not pose a “‘water-supply prob-

lem” that requires the preparation of an EIS.°®

The alleged effects of the FWS’s action in this case are

analogous to the effects analyzed in Metropolitan Edison

and are likewise beyond the scope of NEPA. In Metro-

politan Edison, the Nuclear Regulatory Commission pre-

pared an EIS concerning the relicensing of a nuclear-

powered electrical generating station. Although the Com-

mission considered the risk of a nuclear accident in its

EIS, it decided not to consider the effect of this risk upon

the psychological health of those who lived near the power

plant. The Supreme Court observed that

a risk of an accident is not an effect on the physical

environment [and] is, by definition, unrealized in the

‘ Another case cited by the plaintiffs, Goodman Group, Inc. v. Dish-

room, 679 F.2d 182 (9th Cir. 1982) does not address ‘‘watersupply

problems”, but instead holds that socioeconomic impacts of a federal

action do not trigger NEPA’s requirement of an EIS. Jd. at 185-86.

36a

physical world. ... We believe that the element of

risk lengthens the causal chain beyond the reach of

NEPA.

Metropolitan Edison, 460 U.S. at 775, 103 S.Ct. at 1562.

The same element of risk is present in the alleged effects

of the FWS’s action in this case.

One effect of the FWS’s action is that as long as the

easement remains in the National Wildlife Refuge System,

SRA can not build the Waters Bluff reservoir. Although

federal law provides certain procedures by which land may

be released from the Refuge System, there is certainly a

risk that SRA may not convince either the Congress or

the Secretary of the Interior to relinquish the easement.®

According to SRA, failing to build the Waters Bluff res-

ervoir also creates a risk that SRA will face water short-

ages in the future that will adversely affect the economic

welfare of the region that SRA serves. Yet a risk that

the reservoir will never be built and that water shortages

may occur in the future as a result is not an effect on

the ‘“‘physical environment’’. Metropolitan Edison, 460 U.S.

at 775, 103 S.Ct. at 1562. There is no causal relationship

between such speculative effects and any change in the

physical environment caused by the acquisition of the ease-

ment. The element of risk inherent in the alleged effects

of the FWS’s action in this case “lengthens the causal

chain beyond the reach of NEPA”. Jd. The Court finds

that the effects of the FWS’s action upon the plaintiffs are

* No land that is a part of the Refuge System may be disposed of

except by Act of Congress unless (1) the Department of the Interior

and the Migratory Bird Conservation Commission determine that such

lands are no longer needed for wildlife refuge purposes and the De-

partment is paid the fair market value of the land, (2) the Department

acquires other lands by exchange, or (3) such land is transferred pur-

suant to the terms of a cooperative agreement with a state or local

government, by which agreement the land originally became part of

the refuge system. 16 U.S.C. § 668dd(aX3). _

37a

not within the scope of NEPA and can not form the basis

of a NEPA claim.

Plaintiffs’ Claims are Contrary to NEPA’s Purpose

The FWS’s EA reveals that the FWS adequately con-

sidered the fact that SRA wanted to acquire the Club’s

land for an alternative use, but the FWS nevertheless

chose to acquire the easement. (AR. D p. 20-21). A careful

analysis of the plaintiffs claims makes it abundantly clear

that the plaintiffs simply object to the FWS’s policy of

acquiring conservation easements on wetland habitat where

doing so poses a hindrance to the construction of reservoir

projects. The plaintiffs’ disagreement with the FWS is

more akin to a political dispute over policy choices than

a legal dispute over compliance with the procedural! re-

quirements of NEPA. Cf Foundation on Economic Trends

v. Lyng, 817 F.2d 882, 886 (D.C.Cir.1987). “Neither the

language nor the history of NEPA suggests that it was

intended to give citizens a general opportunity to air their

policy objections to proposed federal actions. . [t]he polit-

ical process, and not NEPA, provides the appropriate

forum in which to air policy disagreements.” Metropolitan

Edison, 460 U.S. at 777, 103 S.Ct. at 1563.7 To permit

the plaintiffs to use the provisions of NEPA to voice their

policy objections to the FWS’s actions and to hinder the

FWS’s attempts to fulfill its mandate from Congress would

be contrary to the purposes of NEPA.

An analogous situation was presented in the case of

Sierra Club v. Marsh, 692 F.Supp. 1210 (S.D.Cal.1988). In

that case, a city applied for an injunction to prohibit the

transfer of certain property from a private party to the

United States pursuant to an agreement to settle a law-

suit. The city desired to develop the property in accordance

’ Legislation that would withdraw the Club Easement from the Ref-

uge System is now pending before the Marine and Fisheries Committee

in the House of Representatives.

38a

with a local development plan. If transferred, the land

would be used as a wildlife refuge, in mitigation for other

land involved in the construction of a local highway/flood

control project. The city passed an ordinance that imposed

certain conditions upon the ttransfer which would have ren-

dered the land useless as & Wildlife refuge. Jd. at 1215.

The Court’s discussion of the city’s claim has particular

relevance to this case.

The federal government is trying to discharge its ob-

ligations under a high priority federal program to pro-

tect endangered species. A private landowner wants

to donate the land to the government to effectuate

these purposes. The City of Chula Vista has passed

a local resolution in an attempt to stymie any transfer

of the property which jit believes does not serve the

City’s interests, which iit has defined as development

in strict accordance wit}h its [local development plan].

Id. at 1215.

The Court found that the City’s NEPA claim presented

“the anomalous situation in Which a municipality is trying

to use federal environmental /aws as a means of protecting

a plan for desired local commercial and residential devel-

opment’”’. Jd. at 1221. The Court rejected the city’s NEPA

claim on the grounds that ‘“{ii]t would be inconsistent with

NEPA’s purposes to allow the city to use NEPA to ob-

struct [the land transfer] which will protect endangered

species.”’ Id.

In this case, the FWS is attempting to carry out an

express mandate from Congress to acquire and protect

wetland habitat.

It is the purpose of this Act to promote, in concert

with other Federal and State statutes and programs,

the conservation of the Wetlands of the Nation ...

by (2) intensifying effortS to protect the wetlands of

39a

the Nation through acquisition [of wetlands] in fee,

easements or other interests ...

Emergency Wetlands Resources Act of 1986, 16 U.S.C.

§ 3901(b)\(2).

This case also presents the anomalous circumstance of

a governmental entity attempting to use the provisions of

NEPA to protect its plan to develop natural resources in

a manner that will unquestionably result in substantial

changes in the physical environment. To permit the

plaintiffs to use the federal environmental laws to this end

and to hinder the FWS’s efforts to carry out its directive

from Congress would be contrary to the purposes of NEPA

and contrary to the FWS’s mandate under § 2(b)(2) of the

Emergency Wetlands Resources Act.

Plaintiffs lack Standing under NEPA

To have standing to challenge the FWS’s action under

NEPA, the plaintiffs must show that they have been ad-

versely affected by the FWS’s action within the meaning

of NEPA. See Lujan v. National Wildlife Federation, —

U.S. , 110 S.Ct. 3177, 3185-86, 111 L.Ed.2d 695

(1990). In other words, the plaintiffs must establish that

the injury of which they complain ‘‘falls within the zone

of interests sought to be protected by the statutory pro-

vision whose violation forms the legal basis of [the] com-

plaint”. Jd. 110 S.Ct. at 3186. The Court’s finding that

the plaintiffs’ claims are not within NEPA’s scope and

that they are contrary to NEPA’s purpose compels the

conclusion that the plaintiffs lack standing to assert a claim

under NEPA. The plaintiffs’ interest in constructing a res-

ervoir is unquestionably an interest that is subject to the

provisions of NEPA, but it is not an interest that NEPA

was designed to protect.

Summary

The Court finds that the FWS’s decision not to prepare

an EIS concerning the easement acquisition was not ar-

40a

bitrary and capricious; the FWS adequately considered all

relevant factors, and there is no clear error in its judg-

ment. Marsh v. Oregon Natural Resources Council, 490

U.S. at __, 109 S.Ct. at 1861. The FONSI issued by the

FWS is correct since there is “‘no reasonable possibility’’

that the FWS’s action will cause ‘‘a significant degradation

of some human environmental factor” through a change

in the physical environment. State of Louisiana v. Lee, 758

F.2d at 1085. Furthermore, the plaintiffs’ claims are not

within the scope of NEPA because (1) the alleged effects

of the FWS’s action lack the requisite causal relationship

to any change in the physical environment caused by the

acquisition of the easement, Metropolitan Edison, 460 U.S.

at 773, 103 S.Ct. at 1561; and (2) the plaintiffs’ claims

are an improper attempt to use the provisions of NEPA

to hinder the FWS in carrying out its mandate from Con-

gress to acquire and preserve wetland habitat. For these

same reasons, the plaintiffs also lack standing to assert a

claim under NEPA, since the plaintiffs’ alleged injury is

not within the ‘zone of interests’ that NEPA was de-

signed to protect.

IV. ADEQUACY OF THE EA

As an alternative to their contention that the FONSI is

incorrect, the plaintiffs contend that the EA prepared by

the FWS is inadequate in several respects and that the

case should be remanded to the FWS for further consid-

eration. The Court has carefully reviewed the EA in light

of the administrative record and the applicable law and

finds that the EA is adequate.

Preparation of an EA is the proper procedure for an

agency to utilize in determining whether to prepare an

EIS concerning a proposed action. Vieux Carre Property

Owners, Residents and Associates, Inc. v. Pierce, 719 F.2d

1272, 1281 (5th Cir.1983); 40 C.F.R. § 1508.9(aX1). Federal

agencies have a duty to prepare a reviewable administra-

tive record, and a court must review the reasonableness

4la

of the agency’s determination on the basis of the infor-

mation available to the agency at the time the EA was

prepared. Citizen Advocates for Responsible Expansion, Inc.

v. Dole, 770 F.2d at 433. NEPA does not mandate any

particular result of the review process but only requires

that federal agencies take a “hard look” at the environ-

mental consequences of a proposed action before such ac-

tion is undertaken. Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, __, 109 S.Ct. 1835, 1846, 104

L.Ed.2d 351 (1989). As long as an agency adequately con-

siders the consequences of its proposed action, NEPA does

not prohibit the agency from concluding that the benefits

of its action outweigh its costs. Id. ‘NEPA merely pro-

hibits uninformed—rather than unwise—agency action.” Jd.

Consideration of the Need for Action

In this case, the FWS selected the land owned by the

Club for possible acquisition on the basis of the findings

of a biological survey conducted at the FWS’s request.

(AR. A). The survey identified the Club’s land as a par-

ticularly valuable site of wetlands habitat, habitat that nu-

merous studies had indicated was rapidly diminishing. (AR.

A-IV). The FWS used the findings of the biological survey

in compiling the Concept Plan and Land Protection Plan.

(AR. C, p. 3). The FWS’s reliance on the survey data to

evaluate the importance of acquiring the conservation ease-

ment on the Club land was clearly reasonable.

Consideration of Water-Supply Issues

Both the survey and the Concept Plan identified planned

reservoir projects as a principal source of conflict with

preservation of wetland sites in eastern Texas. (AR. B, p.

133). The survey specifically excluded wetlands sites that

might conflict with planned reservoir projects. (AR. A-II).

In evaluating the extent of the conflict between wetlands

sites and planned reservoir projects, the FWS relied upon

the 1984 Texas Water Plan developed by the Texas De-

partment of Water Resources. (AR. H). The FWS’s reli-

42a

ance on the Water Plan’s data and projections concerning

future reservoir projects and water supplies was reason-

able in light of the fact that the Water Plan is ‘designed

to be a state-wide comprehensive estimation of the future

water demands and supplies for all of Texas over a 50-

year planning period’’. (Amicus Brief of the State of Texas

at p. 8).

Although Waters Bluff was not listed as a planned res-

ervoir in the Water Plan, the FWS nevertheless reviewed

the SRA’s Master Plan Update which contained SRA’s

own water supply projections to support its conclusion that

Waters Bluff is a feasible and necessary reservoir project.

(AR. D, p. 18, 50; AR. L—N). SRA’s Master Plan Update

relied on the Water Plan to provide ‘‘some of the basic

data sources utilized in the projections of future basin

water requirements’’. (AR. M, p. 1-6). The record indicates

that the FWS fully considered the available data on future

water supply needs of the Sabine River Basin contained

in both the Water Plan and SRA’s Master Plan Update.

The final EA issued by the FWS contains an adequate

discussion of the water-supply issues raised by SRA in its

opposition to the proposed easement. (AR. D, p. 12-16).

There is no indication that the FWS failed to consider

pertinent data in reaching its conclusion. The plaintiffs

merely disagree with the FWS’s interpretation of the avail-

able data and the conclusion that the FWS reached. Yet

“the mere existence of differing opinions does not make

[the agency’s] decision erroneous.” State of Louisiana v.

Lee, 758 F.2d at 1085. This Court can not conclude that

the FWS’s review of the water-supply issues raised by

SRA was inadequate or that the FWS’s conclusion was

unreasonable, arbitrary or capricious.

Consideratien of Alternatives

The plaintiffs contend that the FWS failed to adequately

consider alternatives to acquisition of the easement. The

FWS considered four alternatives: (1) taking no action to

48a

preserve the Club’s land, (2) establishing a refuge in con-

junction with the Waters Bluff project, (3) acquiring the

Club’s land in fee simple, and (4) acquiring a less-than-fee-

simple interest in the Club’s land. (AR. D, p. 20-25). SRA

faults the FWS for not considering the acquisition of high

priority wetland habitat outside the area of SRA’s Waters

Bluff project and for failing to adequately consider estab-

lishing a refuge in conjunction with the Waters Bluff pro)-

ect.

Once an agency adequately addresses alternatives to its

proposed action, ‘‘the decision of which alternative to fol-

low is within the agency’s discretion”. South Louisiana

Environmental Council, Inc. v. Sand, 629 F.2d 1005, 1017

(5th Cir.1980). “[T]he range of alternatives that reasonably

must be considered decreases as the environmental impact

of the proposed action becomes less and less substantial”’.

Olmsted Citizens for a Better Community v. United States,

793 F.2d 201, 208 (8th Cir.1986). Although consideration

of some range of alternatives is essential to any environ-

mental assessment, it makes little sense to fault an agency

for failing to consider “more environmentally sound alter-

natives to a project which it has (properly]- determined,

through its decision not to file an impact statement, will

have no significant environmental effects anyway . Id.; see

also City of New York v. United States Dept. of Trans-

portation, 715 F.2d 732, 744 (2nd Cir.1983), cert. den., 465

U.S. 1055, 104 S.Ct. 1408, 79 L.Ed.2d 730 (1984). Since

the FONSI concerning acquisition of the easement is cor-

rect, the range of alternatives considered by the FWS was

adequate.

The FWS considered and rejected the no-action alter-

native for the simple reason that doing nothing to preserve

the highest priority site of wetland habitat would not be

consistent with the FWS’s preservation efforts and would

likely permit the irretrievable loss of the habitat. (AR. D,

p. 21). Similarly, establishing a refuge in conjunction with

the Waters Bluff project was rejected because that alter-

ce a

44a

native would not prevent destruction of the wetland hab-

itat. (AR. D, p. 20-21). The FWS also concluded that any

area set aside for refuge purposes would be of inferior

quality. (AR. D, p. 20-21). This conclusion is supported by

the report issued by the Texas Parks and Wildlife De-

partment which suggested that wetland sites established

in conjunction with reservoir projects are of only “‘mar-

ginal’’ value to waterfowl populations. (AR. K-I-7, p. 18-

19). Acquisition of the Club’s land in fee-simple was not

an available alternative because the Club was not willing

to sell, and the FWS was operating under budgetary con-

straints that made no-cost acquisitions especially attrac-

tive. (AR. D, p. 23-24). The Court finds that the FWS’s

consideration of these alternative courses of action was

adequate and reasonable.

Consultation with Other Agencies

The plaintiffs contend that the FWS failed to properly

consult with other federal and state agencies during the

NEPA review process. This claim is not supported by the

evidence in the record, and it is based on the erroneous

assumption that NEPA mandates inter-agency consultation

before a draft EA is prepared.

Although the applicable regulations do not address the

timing of inter-agency consultation in the preparation of

an EA, the regulations do provide that after preparing a

draft EIS and before preparing a final EIS the agency

shall obtain the comments of other Federal agencies and

request the comments of appropriate State and local agen-

cies. 40 C.F.R. § 1503.1(aX1, 2). The regulations further

provide that an agency shall respond to such comments.

Id. at § 1503.4(a). There is nothing in NEPA or the ap-

plicable regulations to suggest that the timing of consul-

tations should be any different when an agency prepared

a draft EA as opposed to a draft EIS.

The record indicates that the FWS circulated its draft

EA to all appropriate federal and state agencies. (AR. D,

45a

p. 49-50; AR. G- 84). The FWS then received a number

of written comments both critical and supportive of its

proposed action. (AR. K). The FWS also received oral and

written comments during the public meeting concerning

the easement. (AR. I). In response to these comments, the

FWS revised its draft EA to include a discussion of the

alleged controversial aspects of its acquisition of the ease-

ment. (AR. P, p. iii; AR. D, p. iii). While the draft EA

contained only a brief reference to SRA’s Waters Bluff

project, the final EA contains a responsive discussion of

the water-supply issues raised by SRA. (AR. P, p. 9; AR.

D, p. 12-16). The FWS also revised the EA to address

the alternative of establishing a refuge in conjunction with

the Waters Bluff project. (AR, P, p. 11-12; AR. D, p. 20).

Thus, the record demonstrates that the FWS considered

and responded to the comments raised in opposition to the

easement. The FWS’s action was consistent with the re-

quirement that an agency involve the public as well as

other government agencies in preparing an EA. See 40

C.F.R. § 1501.4(b). That the FWS chose not to agree with

the objections raised by SRA and others does not under-

mine the adequacy of the FWS’s NEPA review.

30-Day Comment Period

A related issue raised by the plaintiffs is the FWS’s

alleged failure to provide a 30-day comment period after

the FONSI was issued. See 40 C.F.R. § 1501.4(e)(2). This

regulation mandates such an additional comment period if

the agency’s proposed action (1) is, or is closely similar

* The case cited by the plaintiffs in support of their contention :s

readily distinguishable. In Simmans v. Grant, 370 F.Supp. 5, 18-19

(S.D. Tex.1974), the Court found that the federal agency had failed to

contact, or to consider the views of, several other agencies in preparing

an EA and a FONSI and that there had been little or no opportunity

provided for the public to express its views on the agency’s proposed

action. The record in this case reveals no similar deficiency in the

FWS’s NEPA review process.

| | ,

46a

to, action that “normally requires’ the preparation of an

EIS under regulations adopted by the agency, or (2) ‘‘the

nature of the action is one without precedent’.

§ 1501.4(e2\i-ii).

Whether the acquisition of the conservation easement is

or is similar to an action that ‘normally requires’ the

preparation of an EIS under Department of Interior reg-

ulations is the subject of somewhat conflicting provisions

in those regulations. On the one hand, the regulations

provide that an FWS proposal to establish “new refuges,

fish hatcheries, or research stations and major additions

to existing installations” will ‘‘normally require the prep-

aration of an EIS“. Department of the Interior Depart-

ment Manual, 516 DM 6, App. 1, 1.3A(1). The regulations

further provide that if an EIS is not prepared for such

proposals, “‘an EA will be prepared and handled in ac-

cordance with § 1501.4(e\2)**. Jd. at 1.8B. On the other

hand, the regulations categorically exclude from the NEPA

process “‘acquisition of land in accordance with the Ser-

vice’s procedures, when acquisition is from a willing seller,

the acquisition planning process has been performed in

coordination with the affected public and continuance of

essentially the existing use is planned”. Jd. at 516 DM 6,

App. 1, 1.4A(4). The resolution of this apparent conflict

lies in a common-sense interpretation of these provisions.

Although the effect of the FWS’s actions in this case

was to create a “new refuge’’, the other types of actions

described in section 1.3A(1) are sufficiently dissimilar to

the FWS’s action in this case to support the conclusion

that the acquisition of a conservation easement by the

FWS is not the “establishment of [a] new refuge [ ]’” for

purposes of section 1.3A(1). “Establishment of new ...

fish hatcheries, research stations and major additions to

existing installations’’ involves more than the mere ac-

quisition of a property interest such as a conservation

easement. This interpretation of section 1.3A(1) is thus

fully consistent with section 1.4A(4)’s categorical exclusion

47a

of land acquisitions by the FWS from a willing seller where

a continuation of the existing use of the land is planned—

an apt description of the FWS’s action in this case. That

the FWS prepared an EA concerning the easement ac-

quisition does not undermine this conclusion because the

regulations provide that an EA “‘may be prepared on any

action [even those covered by a categorical exclusion] at

any time in order to assist planning and decision-making’’.

Id. at 516 DM 3.2; see also 40 C.F.R. § 1508.4. Accord-

ingly, the FWS’s action in this case was not one that would

normally require the preparation of an EIS under regu-

lations adopted by the FWS, nor was it similar to such

an action.

The 30-day comment period must also be provided if

“the nature of the proposed action is one without prece-

dent”. 40 C.F.R. 1501.4(eX2Xii). Whether the “‘nature” of

the FWS’s action is ‘“‘without precedent” is largely a func-

tion of the definition one assigns to the term ‘‘nature’’.

If, as the plaintiffs argue, the “nature” of the FWS’s

action is the acquisition of a conservation easement in an

area where construction of a reservoir is planned, then

the action is “‘without precedent” since the FWS admits

that no other conservation easements have been acquired

in an area where a reservoir project is planned. Yet the

common understanding of the term “‘nature’’—the essential

character of something—illustrates that the FWS’s action

was not “without precedent”. The essential character of

the FWS’s action is the acquisition of a conservation ease-

ment under circumstances that pose a conflict with another

party’s desired uses of the same land. The ‘‘nature”’ of

the FWS’s action is not “without precedent” since the

FWS has heretofore acquired similar easements under cir-

cumstances that also posed a conflict with other potential

uses of the same land. (AR. D, p, iii). Because the FWS’s

acion was not without precedent, no additional comment

period under 40 C.F.R. § 1501.4(eX2) was required.

48a

Finally, even if the Court were to find that the 30-day

comment period applied to the FONSI in this case, the

plaintiffs have failed to identify any additional relevant

information that they or any other party would have pro-

vided the FWS. Accordingly, there is nothing to suggest

that the absence of the additional comment period deprived

the FWS of relevant information such as would undermine

the reasonableness or adequacy of the FWS’s NEPA re-

view process.

Consideration of Controversy, Precedent and Cumula-

tive Effects

The plaintiffs also contend that the FWS failed to con-

sider the extent of the controversy surrounding its action,

the precedential nature of the action, and the cumulative

effects of acquiring additional conservation easements. This

claim is based on regulations that provide that in deter-

mining whether a proposed action is “significant” under

NEPA, the “intensity” or severity of the environmental

“impact” of the proposed action must be considered. 40

C.F.R. § 1508.27(b). Among the several factors listed for

consideration in determining “‘intensity’’ are the degree to

which the effects on the quality of the human environment

are likely to be highly controversial’’, “the degree to which

the action may establish a precedent for future actions

with significant effects”, and whether the action is related

to other actions with individually insignificant but cumu-

latively significant impacts”. Jd. at § 1508.27(b\4, 6, 7).

The only “‘effects” or “impacts” that must be considered

under NEPA, however, are those that have a reasonably

close causal relationship to a change in the physical en-

vironment caused by the federal action at issue. Metro-

politan Edison, 460 U.S. at 773, 108 S.Ct. at 1561. The

Court has already found that the alleged effects of the

F'WS’s action in this case—interference with SRA’s plans

to build Waters Bluff and a ri8k of future water short-

ages—lack the requisite causal relationship because acqui-

49a

sition of the easement will not cause any change in the

physical environment. Since the alleged effects of the

FWS’s acquisition of the easement are beyond the scope

of NEPA, the factors listed in § 1508.27(b) are of no legal

significance to this case, because such factors are only

relevant to an evaluation of whether the “‘effects’’ of a

proposed action are ‘‘significant’” under NEPA.

The case cited by the plaintiffs, Sierra Club v. Marsh,

769 F.2d 868 (1st Cir.1985) does not compel a contrary

finding. That case discussed ‘‘precedent for future actions

with significant effects’’ in the context of actions taken

by an agency that would encourage further commercial or

industrial development. See Jd. at 879. Such is not the

case here. To the extent that the acquisition of this ease-

ment sets a precedent for acquisitions of additional con-

servation easements by the FWS, such future actions would

not have “significant effects” under NEPA because the

acquisition of such easements does not cause any ‘“‘change

in the physical environment’.

Summary

_ Although the plaintiffs disagree with the FWS’s eval-

uation of the data compiled in the NEPA review process

as well as the conclusions reached by the FWS, such dis-

agreement is not sufficient to raise a NEPA claim. The

_purpose of NEPA is to ensure that federal agencies do

not make uninformed, as opposed to ‘“‘unwise’’, decisions

that affect the environment, and so long as an agency

adequately. considers the consequences of its proposed ac-

tion, NEPA does not prohibit the agency from concluding

that the benefits of its action outweigh its costs. Robertson

v. Methow Valley Citizens Council, 490 U.S. at__., 109

S.Ct. at 1846. The record shows that in this case, the

FWS adequately considered the environmental conse-

quences of its action and that is all that NEPA requires.

50a

V. CONCEPT PLAN NOT SUBJECT TO NEPA

The plaintiffs also contend that the FWS should have

prepared an EIS concerning the Preservation Program.

Unless the Preservation Program is a “proposal” for a

major federal action, NEPA does not require the prepa-

ration of an EIS. See Kleppe v. Sierra Club, 427 U.S. 390,

399, 96 S.Ct. 2718, 2725 (1976); Foundation On Economic

Trends v. Lyng, 817 F.2d 882, 885-86 (D.C.Cir.1987). “‘The

mere contemplation of certain action is not sufficient to

require an impact statement.” F’ritiofson v. Alexander, 772

F.2d at 1240. Under 40 C.F.R. § 1508.23, a

[p]roposal exists at the stage in the development of

an action when an agency ... has a goal and is ac-

tively preparing to make a decision on one or more

alternative means of accomplishing that goal and the

effects [of the proposed action] can be meaningfully

evaluated.

After carefully reviewing the Preservation Program as set

forth in the FWS’s Concept Plan document (AR. B), the

Court finds that the Preservation Program is not a “‘pro-

posal’”’ for major federai action under NEPA.

The plaintiffs characterize the Concept Plan document

as a proposal for a series of land acquisitions by the FWS.

The alleged effect of this proposal is, once again, the

“elimination” of potential reservoir sites. As the Court

discussed earlier at length, such effects are not within the

scope of NEPA because of the absence of any causal con-

nection between acquisition of conservation easements and

any changes in the physical environment. For this reason

alone, the plaintiffs can not maintain a NEPA claim con-

cerning the Preservation Program. Additionally, a plain

reading of the Concept Plan demonstrates that it is noth-

ing more than a preliminary study document that the FWS

intends to use as a basis for making specific proposals for

land acquisitions in the future.

vi. ot erie

5la

The FWS’s guidelines concerning land acquisitions ex-

plain that a concept plan such as the one prepared for the

Preservation Program is only a preliminary step in the

FWS’s decision making process concerning land acquisi-

tions. FWS Realty Manual, 2 REM 2.10-11).° Even after

a concept plan is prepared, land acquisitions may be re-

jected after the FWS conducts further study and planning. -

Id. It is only after such further study and planning that

the FWS prepares a “decision document” concerning a

specific proposal for land acquisition, and the guidelines

provide that such decision documents shall be prepared in

accordance with NEPA. Thus, the Preservation Program

Concept Plan is not a “proposal’’ under NEPA, and the

statements contained in the Preservation Program Concept

Plan support this conclusion.

The majority of the Preservation Program Concept Plan

document is simply informational in nature. The Concept

Plan contains an extensive discussion of the types of flora

and fauna found in bottomlands habitat. (AR. B, pp. 29-

82). There is also an extensive review of the natural re-

sources and socio-economic features of the East Texas area

encompassing bottomlands habitat. (AR. B, pp. 83-123).

The statements, contained in the document that relate di-

rectly to acquisition of bottomlands habitat show that the

Concept Plan does not contain a “proposal” for land ac-

quisitions.

In the Concept Plan, the FWS states that [t]he pur- -

pose of this program is to identify and seek methods

for preserving as much of the remaining bottomlands

habitats of east Texas as possible ... A total of 62

areas of widely varying quality have been identified

... Not all of these sites are being recommended for

preservation, and other areas may be listed as addi-

~ tional information becomes available.

* Appendix 6, Federal Defendants’ Motion for Summary Judgment.

(AR, B, p. 4).

The Concept Plan also recites that “{aj Stated acreage and

policy objective for [preserving] bottoMlands in Texas is

very difficult, because of the infancy ef the program and

the complexity of the biological and soclogical factors in-

volved.‘‘ (AR. B, pp. 3-4). Although tK& Concept Plan di-

vides areas of bottomlands habitat into SIX priority groups,

the Concept Plan specifies that the categories may be sub-

sequently reviewed and revised by the FWS and other

parties. (AR. B, p. 22). Finally, the FWS states in the

Concept Plan that it has only a “minimal amount” of

information concerning the owners of Jands that encompass

bottomlands habitat, and that only after the FWS contacts

landowners will a “detailed preservation Plan” be prepared

for a specific site. (AR. B, p. 22).

These statements belie the plaintiffs’ 4Ssertion that the

Concept Plan is a “proposal” for federd! action. The Con-

cept Plan does not identify which sites Will be acquired

by the FWS, nor does it identify which of the various

suggested alternative methods of preséTvation might be

used to acquire any particular site or Category of sites.

Thus, there are no discernible “effects” Of any particular

fully evaluated under NEPA. AccordinglY» the Court finds

that the FWS was not required to prePare an EIS con-

cerning the Preservation Program, sinc® the Program is

not a “proposal’’ for major federal actie™-

VI. NO VIOLATION OF 16 U.S.C. § 460k OR § 742a

In its Original Complaint, SRA alleged that the terms

of the easement restricting public acceSS to the Club’s

property violated provisions of the Fish 294 Wildlife Act,

16 U.S.C. §742a, and the Refuge Refreation Act, 16

U.S.C. § 460k. Not only do these statutes fail to provide

any basis for SRA’s claims, these statuteS Specifically au-

thorize the FWS’s action in this case.

53a

The Fish and Wildlife Act provides in part that

The Secretary of the Interior is authorized to accept

any gifts, devises, or bequests of real or personal

property ... for the benefit of the United States Fish

and Wildlife Service ... Such acceptance may be sub-

ject to the terms of any restrictive or affirmative

covenant, or condition of servitude, if such terms are

deemed by the Secretary to be in accordance with law

and compatible with the purpose for which acceptance

is sought.

16 U.S.C. § 742f(b)(1).

The Refuge Recreation Act grants the Secretary similar

discretion to permit or restrict public use of refuge areas,

and to accept donations of real property under such re-

strictions as the Secretary may deem to be compatible with

the purposes of the refuge areas. 16 U.S.C. § 460k. SRA

has failed to demonstrate that the FWS’s acceptance of

the easement under terms restricting the public’s access

to what remains privately owned land was unreasonable,

arbitrary or capricious.

VII. SUMMARY

For the foregoing reasons, the Court finds that (1) the

FWS’s FONSI concerning the acquisition of the conser-

vation easement is correct because there is “no reasonable

possibility” that the FWS’s action will cause “‘a significant

degradation of some human environmental factor’ through

a change in the physical environment; (2) the alleged effect

of the FWS’s action—"‘elimination of a potential reservoir

site’’—is not within the scope of NEPA because there is

no causal relationship between the alleged effect and any

change in the physical environment caused by the acqui-

sition of the easement; (3) the plaintiffs lack standing un-

der NEPA to challenge the FWS’s acquisition of the

easement; (4) the EA prepared by the FWS was adequate;

(5) NEPA does not require the FWS to prepare an EIS

concerning its Preservation Program, as set forth in the

Concept Plan, because the Program is not a “proposal’’

for a major federal action; and (6) the FWS did not violate

the Fish and Wildlife Act or the Refuge Recreation Act

by agreeing to accept the easement under terms that re-

strict the public’s access to the Club’s property. Therefore,

it is

ORDERED the Motions for Summary Judgment filed by

the plaintiff Sabine River Authority and plaintiff-inter-

venor Texas Water Conservation Association are DENIED.

It is further

ORDERED the Motions for Summary Judgment filed by

the defendants United States Department of Interior and

United States Fish and Wildlife Service, Little Sandy

Hunting and Fishing Club, and defendant-intervenors

Sierra Club and National Audubon Society are GRANTED,

and all of the plaintiffs’ claims against all of the defendants

are DISMISSED WITH PREJUDICE.

55a

APPENDIX C

ORDER

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-4761

SABINE RIVER AUTHORITY,

Plaintiff-Appellant,

and

TEXAS WATER CONSERVATION ASSOCIATION,

Plaintiff-Intervenor- Appellant,

versus

U.S. DEPARTMENT OF INTERIOR, ET AL.,

Defendants-Appellees,

and

THE SIERRA CLUB AND THE NATIONAL

AUDUBON SOCIETY,

Defendants-Intervenors-Appellees.

U.S. Court of Appeals,

FILED

Mar 4 1992,

Gilbert F. Ganucheau

Clerk

Appeal from the United States District Court for the

Eastern District of Texas

56a

ON PETITION FOR REHEARING

(March 4, 1992)

Before GOLDBERG, GARWOOD, Circuit Judges and BUCH-

MEYER’, District Judge.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

the above entitled and numbered cause be and the same

is hereby DENIED.

ENTERED FOR THE COURT:Clerk’s Note:

See FRAP and Local Rules

/s/ Irwin L. Goldberg 41 for Stay of the Mandate.

United States District JudgeRHG-4

* District Judge for the Northern District of Texas, sitting by des-

ignation.

57a

APPENDIX D

THE NATIONAL ENVIRONMENTAL

POLICY ACT

(42 USC 4321 et seq.; amended by PL 94-52,

July 3, 1975; PL 94-83, August 9, 1975)

Purpose

Sec. 2. (§ 4321) The purposes of this Act are: To declare

a national policy which will encourage productive and en-

joyable harmony between man and his environment; to

promote efforts which will prevent or eliminate damage

to the environment and biosphere and stimulate the health

and welfare of man; to enrich the understanding of the

ecological systems and natural resources-important to the

Nation; and to establish a Council on Environmental Qual-

ity.

Title I

Declaration of National Environmental Policy

Sec. 101. (§ 4331\a) The Congress, recognizing the pro-

found impact of man’s activity on the interrelations of all

components of the natural environment, particularly the

profound influences of population growth, high-density ur-

banization, industrial expansion, resource exploitation, and

new and expanding technological advances and recognizing

further the critical importance of restoring and maintain-

ing environmental quality to the overall welfare and de-

velopment of man, declares that it is the continuing policy

of the Federal Government, in cooperation with State and

local governments, and other concerned public and private

organizations, to use all practicable means and measures,

including financial and technical assistance, in a manner

calculated to foster and promote the general welfare, to

create and maintain conditions under which man and na-

ture can exist in productive harmony, and fulfill the social,

58a

economic, and other requirements of present and future

generations of Americans.

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

it is the continuing responsibility of the Federal Govern-

ment to use all practicable means, consistent with other

essential considerations of national policy, to improve and

coordinate Federal plans, functions, programs, and re-

sources to the end that the Nation may—

(1) fulfill the responsibilities of each generation as

trustee of the environment for succeeding genera-

tions;

(2) assure for all Americans safe, healthful, pro-

ductive, and esthetically and culturally pleasing sur-

roundings; j

(3) attain the widest range of beneficial uses of the

environment without degradation, risk to health or

safety, or other undesirable and unintended conse-

quences;

(4) preserve important historic, cultural, and natural

aspects of our national heritage, and maintain, wher-

ever possible, an environment which supports diver-

sity and variety of individual choice;

(5) achieve a balance between population and re-

source use which will permit high standards of living

and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources and

approach the maximum attainable recycling of de-

pletable resources.

enjoy a healthful environment and each person has a re-

sponsibility to contribute to the preservation and enhance-

ment of he environment.

Sec. 102 (§ 4332) The Congress authorizes and directs

that, to the fullest extent possible: (1) the policies, regu-

lations, and public laws of the United States shall be in-

terpreted and administered in accordance with the policies

59a

set forth in this Act, and (2) all agencies of the Federal

Government shall—

(A) utilize a systematic, interdisciplinary approach

which will insure the integrated use of the natural

and social sciences and the environmental design arts

in planning and in decisionmaking which may have an

impact on man’s environment;

(B) identify and develop methods and procedures,

‘n consultation with the Council on Environmental

Quality established by title II of this Act, which will

insure that presently unquantified environmental

amenities and values may be given appropriate con-

sideration in decisionmaking along with economic and

technical considerations;

proposals for legislation and other major Federal ac-

tions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

(i) the environmental impact of the proposed

action,

P (ii) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented, .

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved in

the proposed action should it be implemented.

Prior to making any detailed statement, the respon-

sible Federal official shall consult with and obtain the

- comments of any Federal agency which has jurisdic-

stion by law or special expertise with respect to any

environmental impact involved. Copies of such state-

60a

ment and the comments and views of the appropriate

Federal, State, and local agencies, which are author-

ized to develop and enforce environmental standards,

shall be made available to the President, the Council

on Environmental Quality and to the public as pro-

vided by section 552 of title 5, United States Code,

and shall accompany the proposal through the existing

agency review processes; .

(D) Any detailed statement required under subpar-

agraph (C) after January 1, 1970, for any major Fed-

eral action funded under a program of grants to States

shall not be deemed to be legally insufficient solely

by reason of having been prepared by a State agency

or official, if:

(i) the State agency or official has statewide

jurisdiction and has the responsibility for such

action,

(ii) the responsible Federal official furnishes

guidance and participates in such preparation,

(iii) the responsible Federal official independ-

ently evaluates such statement prior to its ap-

proval and adoption, and

(iv) after January 1, 1976, the responsible Fed-

eral official provides early notification to, and so-

licits the views of, any other State or any Federal

land management entity of any action or any

alternative thereto which may have significant

impacts upon such State or affected Federal land

management entity and, if there is any disa-

greement on such impacts, prepares a written

assessment of such impacts and views for incor-

poration into such detailed statement.

The procedures in this subparagraph shall not relieve

the Federal official of his responsibilities for the scope,

objectivity, and content of the entire statement or of

any other responsibility under this Act; and further,

6la

this subparagraph does not affect the legal sufficiency

of statements prepared by State agencies with less

than statewide jurisdiction.

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

natives to recommended courses of action in any pro-

posal which involves unresolved conflicts concerning

alternative uses of available resources;

(F) recognize the worldwide and long-range char-

acter of environmental problems and, where consist-

ent with the foreign policy of the United States, lend

appropriate support to initiatives, resolutions, and

programs designed to maximize international coop-

eration in anticipating and preventing a decline in the

quality of mankind’s world environment;

(G) make available to States, counties, municipali-

ties, institutions, and individuals, advice and infor-

mation useful in restoring, maintaining, and enhancing

the quality of the environment;

(H) initiate and utilize ecological information in the

planning and development of resource-oriented pro)-

ects; and

(I) assist the Council on Environmental Quality es-

tablished by title II of this Act.

Sec. 103. (§ 4333) All agencies of the Federal Govern-

ment shall review their present statutory authority, ad-

ministrative regulations, and current policies and

procedures for the purpose of determining whether there

are any deficiencies or inconsistencies therein which pro-

hibit full compliance with the purposes and provisions of

this Act and shall propose to the President not later than

July 1, 1971, such measures as may be necessary to bring

their authority and policies into conformity with the intent,

purposes, and procedures set forth in this Act.

Sec. 104. (§ 4334) Nothing in Section 102 or 103 shall

in any way affect the specific statutory obligations of any

Federal agency (1) to comply with criteria or standards of

62a

environmental quality, (2) to coordinate or consult with

any other Federal or State agency, or (8) to act, or refrain

from acting contingent upon the recommendations or cert-

ification of any other Federal or State agency.

Sec. 105. (§ 4335) The policies and goals set forth in

this Act are supplementary to those set forth in existing

authorizations of Federal agencies.

Title IT

Council on Environmental Quality

Sec. 201. (§ 4341) The President shall transmit to the

Congress annually beginning July 1, 1970, an Environ-

mental Quality Report (hereinafter referred to as the “‘re-

port’) which shall set forth (1) the status and condition

of the major natural, manmade, or altered environmental

classes of the Nation, including, but not limited to, the

air, the aquatic, including marine, estuarine, and fresh

water, and the terrestrial environment, including, but not

limited to, the forest dryland, wetland, range, urban, sub-

urban, and rural environment; (2) current and foreseeable

trends in the quality, management and utilization of such

environments and the effects of those trends on the social,

economic, and other requirements of the Nation; (3) the

adequacy of available natural resources for fulfilling human

and economic requirements of the Nation in the light of

expected population pressures; (4) a review of the pro-

grams and activities (including regulatory activities) of the

Federal Government, the State and local governments, and

nongovernmental entities or individuals, with particular

reference to their effect on the environment and on the

conservation, development and utilization of natural re-

sources; and (5) a program for remedying the deficiencies

of existing programs and activities, together with rec-

ommendations for legislation.

Sec. 202. (§ 4342) There is created in the Executive

Office of the President a Council on Environmental Quality

63a

(hereinafter referred to as the ‘‘Council’’). The Council

shall be composed of three members who shal! be ap-

pointed by the President to serve at his pleasure, by and

with the advice and consent of the Senate. The President

shall designate one of the members of the Council to serve

as Chairman. Each member shall be a person who, as a

result of his training, experience, and attainments, is ex-

ceptionally well qualified to analyze and interpret environ-

mental trends and information of all kinds; to appraise

programs and activities of the Federal Government in the

light of the policy set forth in title I of this Act; to be

conscious of and responsive to the scientific, economic,

social, esthetic, and cultural needs and interests of the

Nation; and to formulate and recommend national policies

to promote the improvement of the quality of the envi-

ronment.

Sec. 203. (§ 4343) (a) The Council may employ such

officers and employees as may be necessary to carry out

its functions under this Act. In addition, the Council may

employ and fix the compensation of such experts and con-

sultants as may be necessary for the carrying out of its

functions under this Act, in accordance with section 3109

of title 5, United States Code (but without regard to the

last sentence thereof).

(b) Notwithstanding section 3679(b) of the Revised Stat-

utes (31 U.S.C. 665(b)), the Council may accept and employ

voluntary and uncompensated services in furtherance of

the purposes of the Council.

Sec. 204. (§ 4344) It shall be the duty and function of

the Council—

(1) to assist and advise the President in the prep-

aration of the Environmental Quality Report required

by section 201;

(2) to gather timely and authoritative information

concerning the conditions and trends in the quality of

the environment both curre

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