Petition for Writ of Certiorari — City of Dallas v. Gould

a

Supreme Court, U.S.

rite oO

081520 JUN 1 9 2009

‘°: —__ F106 OF THE CLERK

Jn The Supreme Court of the Anited States

Ciry OF DALLAS, TEXAS, Petitioner,

V.

RO'WAN W. GOULD, DIRECTOR OF TIE UNITED STATES

FISH AND WILDLIFE SERVICE, ET AL., Respondents.

On Petition For A Writ Of Certiorari

To The United State Court Of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN C. MARTIN THOMAS P. PERKINS, JR

Counsel of Record CHRISTOPHER D. BOWERS

AMY B. CHASANOV City of Dallas

Pation Boggs LLP 1500 Marila Street

2550 M Street, NW Dallas, TX 75201

Washington, DC 20037 (214) 670-3519

(202) 457-6032

S. CASS WEILAND

ROBERT A. HAWKINS

Patton Boggs LLP

2001 Ross Ave., Ste. 3000

Dallas, TX 75201

(214) 758-1504

Counsel for Petitioner

sb ir atli eh mt see EIS ACS eR ERE MS BD BRE CDNTE AT INNA ACACIA ek YOO PRE A =

QUESTIONS PRESENTED FOR REVIEW

This case involves the U.S. Fish and Wildlife

Service’s (“FWS”) compliance with the National

Environmental Policy Act (“NEPA”) when it

established the boundaries for a new, permanent

25,28 1-acre national wildlife refuge along the upper

Neches River in East Texas.

1. When establishing a permanent wildlife refuge

covering thousands of acres, did FWS comply with

NEPA when it (i) established a short-term time

horizon that it knew would preclude consideration of

reasonably foreseeable effects beyond that time

horizon; (ii) excluded the known indirect impacts of

its actions on a reservoir project planned, pursuant

to Texas law, for the same area; and (iii) refused to

consider any alternative that would allow both the

wildlife refuge and the reservoir to proceed?

2. Whether the Fifth Circuit failed to follow this

Court’s “proximate causation” requirement, as

enunciated in Department of Transportation ov.

Pubiic Citizen, 541 U.S. 752 (2004), when it excused

FWS’s failure to assess, under NEPA, the indirect

impacts associated with the loss of a municipal

water source?

3. May acourt properly hold that FWS’s reliance on

20-year-old, inaccurate data did not affect its NEPA

decision ever though the data concerned the central

environmental issue in FWS’s decision, and despite

the absence in the administrative record of any

suggestion that FWS had accounted for the

inaccuracy in its decisionmaking?

ll

PARTIES INVOLVED

The respondents in this Court are:'

Rowan W. Gould, in his official capacity as Director

of the United States Fish and Wildlife Service

Ken Salazar, in his official capacity as the Secretary

of the United States Department of the Interior

Benjamin N. Tuggle, in his official capacity as the

Regional Director of the Southwest Region

(Region 2) of the United States Fish and Wildlife

Service

United States Department of the Interior

. — , ;

Rowan W. Gould is substituted for H. Dale Hall, and Ken

Salazar is substituted for Dick Kempthorne, pursuant to

Supreme Court Rule 35(3)

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. ............... ]

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JURISDICTION .......... eRe NMRA NN, oP Ad Ker 8. 1

STATUTORY AND REGULATORY

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Pe te IE Stel xk Scturscanscnuonriseaeadeiraskiua torres 2

STAT eee LCP TEED CAPREE ED vansesdiccccedsrccececsecnaceceses 3

A. The City’s and State’s Plans for

Designation of Fastrill Reservoir.. .............. 3

B. FWS’s Plans To Designate The Refuge........ 4

C. District Court's Decision ..............ccccccrscssesees 6

DD. FREER CRP CUEE © DIGGING oie ccc snccccenersssccosnnes 8

REASONS FOR GRANTING THE PETITION ........ 9

A. The Fifth Circuit’s Application Of

NEPA’s Environmental Impacts

Analysis Conflicts With The Holdings

Pe SM CN ogo sacccnickcacacteceesecccnivecceass 11

B. The Fifth Circuit's Decision That The

Refuge Was Not The Proximate Cause

Of ‘The Effects On The State’s Water

Supply Fails To Follow This Court's

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C. The Fifth Circuit’s Approval Of FWS’s

Outdated Data Conflicts With

Decisions By Other Circuits....................... 29

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APPENDIX

Opinion of the U.S. Court of Appeals for the

Fifth Circuit (March 12, 2009)

Opinion of the U.S. District Court of the

Northern District of Texas Granting Federal

Defendants’ Cross-Motion for Partial

Summary Judgment (June 30, 2008).................... 2la

Opinion of the U.S. District Court of the

Northern District of Texas Granting Plaintiffs’

Emergency Motion for Injunction Pending

PE CP i IE acs coca ccecsenvenes das scececcndssocseds 60a

Statutory and Regulatory Excerpts....................... 67a

Vv

TABLE OF AUTHORITIES

FEDERAL CASES PAGE(S)

American Bird Cons. v. Fed. Commce’ns

Comm'n, 516 F.3d 1027 (D.C. Cir. 2008)........... 13

Border Power Plant Working Group v. U.S.

Dep't of Energy, 260 F. Supp. 2d 997 (S.D.

I a Se 16

Bowen v. Georgetown Univ. Hosp., 488 U.S.

ES RR RAED MERU OR MIDI cae Uneasy 32

Brady Campaign to Prevent Gun Violence v.

Saiazar, -- F. Supp. 2d --, No. 08-2243,

2009 WL 763091 (D.D.C. Mar. 19, 2009)........... 13

California v. Block, 690 F.2d 753 (9th Cir.

| REE PE EAS Rie eee Heer Secale Hee 8 ak OR 22

Cape Hatteras Access Pres. Alliance v. U.S.

Dep't of the Interior, 344 F. Supp. 2d 108

NE MI ocd. oarsd un asenni eke ee ase 34

Catron County Bd. of Comm’rs, NM v. U.S.

Fish & Wildlife Serv., 75 F.3d 1429 (10th

ee I eet ik 0 ie ee ee 23, 34

Center for Biological Diversity v. Natl

Highway Traffic Safety Admin., 538 F.3d

re iiss cdsnckckscssicniceaeerences ovens 20

Citizens Against Burlington, Inc. v. Busey, 938

ie 8 fil oe te | erence minus 20

Citizens to Pres. Overton Park, Inc. v. Volpe,

er Pe I Sgn Sines cecntc ci nceataeaecco semicon 10

Citizens’ Comm. to Save Our Canyons v.

Krueger, 513 F.3d 1169 (10th Cir. 2008)............ 29

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

SA; Se evcaccidnesaishtsaarccctec aeons 12, 32, 24

lll ln l,l, alli, a, lll ll. lll. ll. lly. lll. lin. ll. ai. lll ll lla. sc

V1

City of New York v. U.S. Dep't of Transp., 715

Be ee IE i, BI vo vinesevunssccecaeeasveseseesensscen 20

City of Shoreacres v. Waterworth, 420 F.3d

GD Ce Ge, I oiccicceccekcssesscdiccerssacceces 12, 16, 27

County of Suffolk v. Sec’y of the Interior, 562

F.2G 1968 GG Cir. 1977) ......ccccocsscccces. aE Rane 22

Davis v. Mineta, 302 F.3d 1104 (10th Cir.

EE sR Perea nel aoe eae nC 19, 20

Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273

SN no ecenausauniuababecnuawns seus 21

Environmental Def. Fund, Inc. v. Army Corps

of Eng’rs, 492 F.2d 1123 (5th Cir, 1974)............ 19

Environmental Def. Fund v. Marsh, 651 F.2d

I I BU ic, ci snuccanwevucesnucsuksiesutsewatonesuses 34

Flint Ridge Dev. Co. v. Scenic Rivers Ass’n,

IE Fe is cvtpnss cscnvdngertavasusiidessvansvaes 10

Florida Key Deer v. Paulison, 522 F.3d 1133

(11th Cir. 2008)................ Psd SPREE <P ap ePID 26

Friends of Fiery Gizzard v. Farmers Home

Admin., 61 F.3d 501 (6th Cir. 1995) ......0000000..... 23

Frituofson v. Alexander, 772 F.2d 1225 (5th

SERRA toh AEE Ee Raton a0 0eR ke oe oa 13, 16

Georgia v. Tenn. Copper Co., 206 U.S. 230

Se a casas uowinawee 24

Goos vu. Interstate Commerce Comm’n, 911

pe Be Ee Le) 19

High Country Citizens’ Alliance v. Norton, 448

F. Supp. 2d 1235 (D. Colo. 2006)........................ 34

Humane Soc’y v. Johanns, 520 F. Supp. 2d 8

ek: g SE eee ne eee PT Ad fet 27

Idaho Sporting Cong., Inc. v. Alexander, 222

F.3d 562 (9th Cir. 2000).................. | | x

Vu

Idaho Sporting Cong. v. Thomas, 137 F.3d

De nn U ceccecanbacidskeuens 29

Tlio'ulaokalani Coal. v. Rumsfeld, 464 F.3d

PI ee Si TD in chee sas Kecocecedccecsdonesanscuvasconses 19

Jette v. Bergland, 579 F.2d 59 (10th Cir. 1978)...... 22

Kern v. Bureau of Land Mgmt., 284 F.3d 1062

I as pdaevennaeinl 17

Klamath-Siskiyou Wildlands Ctr. v. U.S.

Forest Serv., 373 F. Supp. 2d 1069 (E.D.

A I oo ea idaiaia ide aaa one 21, 31, 32

Lands Council v. McNair, 537 F.3d 981 (9th

be | RSL i eee RGA Layer of 9 29

Lands Council v. Powell, 395 F.3d 1019 (9th

ey MN ccd ccavnae vencswaces nncsond tae eaninek 30, 31

Massachusetts v. Envtl. Prot. Agency, 549 U.S.

RN a ees openacunes 24

Methow Valley Citizens Council v. Keg’l

Forester, 833 F.2d 810 (9th Cir. 1987)........... oe oe

Metropolitan Edison Co. v. People Against

Nuclear Energy, 460 U.S. 766 (1983)................. 26

Mid States Coal. for Progress v. Surface

Transp. Bd., 345 F.3d 520 (8th Cir. 2003)......... 12

Motor Vehicles Mfrs. Ass’n, Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29 (1983).............. 32

Muckhleshoot Indian Tribe v. U.S. Forest Serv.,

177 F.3d 800 (9th Cir. 1999).........000000.... 13, 19, 21

National Ass'n of Home Builders v. Defenders

of Wildlife, 127 S. Ct. 2518 (2007)......... 57S SNE A 27

National Audubon Soc’y v. U.S. Dep't of the

Navy, 422 F.3d 174 (4th Cir. 2005)......00000000000... 10

Natural Res. Def. Council, Inc. v. Evans, 168

Fr. Supp. 24 1149 (N.D. Cal. 200))...................... 21

Vil

New Mexico v. Bureau of Land Mgmt., 565

P.O GES CLOG Cae, BOOB vc cccscccccscsecccsescses PA 31

North Carolina Alliance for Transp. Reform,

Inc. v. U.S. Dep’t of Transp., 151 F. Supp.

i 8 eae Ie Oe sicnevenustapediesnsvcsapniaaen 30

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

Cie RGN a, RUMI caacacsasssceesancuciccusciecncaaeanei sae 24

Olmsted Citizens for a Better Cmty. v. United

States, 793 F.2d 201 (8th Cir. 1986) ............ 19, 24

Oregon Natural Res. Council Fund v. Brong,

492 F.3d 1120 (9th Cir. 2007).......... Bers i Rk ¥y

Oregon Natural Res. Council Fund v.

Goodman, 505 F.3d 884 (9th Cir. 2007)............. 17

Oregon Natural Res. Council v. Marsh, 832

Pe 3OG0 Ge Cie. BP ikccscscccansamionees 16

Rapanos v. United States, 547 U.S. 715 (2006) .. 2, 24

Sabine River Auth. v. U.S. Dep’t of Intervor,

745 F. Supp. 388 (E.D. Tex. 1990)...................... 22

Sabine River Auth. v. U.S. Dep't of Interior,

951 F.2d 669 (5th Cir. 1992).............. LR iE, 6, 25

Save Our Sonoran, Inc. v. Flowers, 408 F.3d

Sob g. Ee "| Meer ee ee 28

Scientists’ Inst. for Pub. Info., Inc. v. Atomic

Energy Comm'n, 481 F.2d 1079 (D.C. Cir.

RIT GP anc vnssceusasvnnctnckesdvsschuceusseganaaneaee 13, 17

Seattle Audubon Soc’y v. Espy, $998 F.2d 699

CBO CAe, FI oecccencessceskecxsncdenicaniae ae 31

Selkirk Conservation Alliance uv. Forsgren, 336

VS O44 COU Cir, BOO) ati vsissecesccccsesscesses a, 17, 18

Sterra Club v. Lynn, 502 F.2d 43 (5th Cir

Be 8 ED ve viccccecesducacccucesvaxshsdncescetendateananalaneeaneeneel 20

LX

Sterra Club v. Mainella, 459 F. Supp. 2d 76

Nees ocd ccssasdensesonscoedinesscscasees 27, 28

Sierra Club v. Marsh, 769 F.2d 868 (1st Cir.

Lu ivacsusevacteresorsces sveoooes 16,17

Stmmons v. Army Cerps of Eng’rs, 120 F.3d

Nee nn ccs sccecaessasvadasveesooresscens 20

Texas Comm. on Natural Res. v. Van Winkle,

197 ¥. Supp. 2d 586 (N.D. Tex. 2002)................ 16

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

RS PED EEDEI.IN, . LOOL) ..ccccccccscccescvcceccscccses cons 24

Utahns for Better Transp. v. U.S. Dep’t of

Transp., 305 F.3d 1152 (10th Cir. 2002)............ 32

FEDERAL STATUTES

5 U.S.C. § 706(a)(2) ............ 1 ee 10

a eee ]

ne TRS ee ny ME IO 23

TAT MEL), |. ..,...0c.sccccsscsossecsssasesscoscssscseseones 23

Nee nen. cccnccssecceseccsesetenvevrss 10

CS eer

42 U.S.C. § 4332(2)(C)Gi)......................0000... eee 12, 19

8) 19

STATE STATUTES

ee CE NG. CR)............00ccccccecsesserecesescens 3

EEO)

Tex. Water Code § 16.053(e)(5)(C)..... 0 8

Tex. Water Code § 16.053(e)(5)(F) 3

REGULATIONS

40 C.FLR. § 1500.10D) .ooccccccccccceccceccceecececeeeevseeesees 9, 29

EID conse scccscccssencccscscccsasersuscescosssssscsesee BO

40 C.F.R. § 1501.4(0b).....0...ccceeececceccescecseeseesecerseecee 12

Be EE oo oie nnosssdecécervdecuisueciaenssacteaeekenens 12

Bice sins nsvsardeviessdncsiessssncvensioncune can

ae i eI ios co ssctccecnaiccesivascctsncocsnsacseneianl 21

Oe ois snc cvassiocsesscdeintectersaesnscesrene 12

ee ae EE savin iy nctuicukeuvecensetnceecsissectooaseotes ——

re ae I wit ccscientnenapucncecececs vans ae a era 29

Oe te I vac cacestanecssdcesactcesevsssesnsouteanvssteuee

pet 2 RD | Serer ‘iatemaccunennssaxmial 12

Oe ie Be inde 65 ssscdscsevessiniaseteadoteretastne 12

BG eB AD vs sie oni sbcisscecéerecamacaceesnceczanea’ 30

40 C.F.R. § 1508.9(b).......... . 12, 19

ae le ee occ icosssdpadketcnctcucssdtlaiomapcnesene 23

Fr Bie te I osiivinnédciucdkvancosspiceershuanabonticnscunnedsl 12

Poe PR 8 Reon ner mre aasaisanenies 19

ee arc avdncsiatensciscoaneeelenan a ae

GS FF lc Te te ic spsdcckecatics penscsvensenssasscreneunn 23

OTHER AUTHORITIES

46 Fed. Reg. 18,026 (Mar. 23, 1981)................. passim

62 Fed. Reg. 2375 (Jan. 16, 1997)....... or cae cca 33

72 Fed. Reg. 10,719 (Mar. 9, 2007)................... ae

Daniel Mandelker, NEPA Law and Litigation

(2d ed. 1999 & 2008 Supp. )................................. 10

TWCA Pet. for a Writ of Cert., No. 91-1927,

1992 WL 12074373 (June 2, 1992) ae

|

PETITION FOR WRIT OF CERTIORARI

The City of Dallas respectfully petitions for a

writ of certiorari to review the judgment and opinion

of the United States Court of Appeals for thé Fifth

Circuit entered in this proceeding.

OPINIONS BELOW

The opinion of tiie court of appeals is reported at

562 F.3d 712, and is reprinted in the attached

Appendix, App. la-20a. The opinion of the district

court on cross-motions for summary judgment is

unreported, and is reprinted in the attached

Appendix, App. 21la-59a. The district court’s order

granting Appellants’ emergency motion for an

injunction while the case was on appeal is reprinted

in the attached Appendix, App. 60a-66a.

JURISDICTION

The opinion of the Fifth Circuit was filed on

March 12, 2009. The jurisdiction of this court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The relevant provisions of the National

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

§§ 4321-4375, its implementing regulations adopted

by the Council on Environmental Quality (“CEQ”),

40 C.F.R. §§ 1500-1508, as well as Texas Water

Code, §§ 1.001-152.302, are reprinted in the attached

Appendix, App., 67a-80a.

2

INTRODUCTION

This conflict pits the City of Dallas (“City”) and

the Texas Water Development Board (“TWDB’”), and

their duty to satisfy the water supply needs of the

millions of current and future residents of North

Texas, against FWS and its desire to establish a

national wildlife refuge in a state that already boasts

19 other wiidlife refuges and 600,000 protected

acres.' Labeling the City and the State’s extensive

water management as “speculation,” FWS overrode

the exercise of a “quintessential state and local

power, Rapanos v. United States, 547 U.S. 715, 738

(2006), without even a look at the effect upon future

water supplies. FWS avoided analysis of the impact

of its actions on State water resources by adopting a

short planning horizon and relying upon twenty-

year-old information. FWS thereby sidestepped

study of the indirect effects of its refuge on water

supply, and limited the range of alternatives so that

none would include a reservoir.

Resolution of these legal issues will have

permanent and profound effects on the State of

Texas, as well as the City and its residents. This

case also has consequences well beyond the parties

here, implicating important, recurring federalism

issues for state and local water planning activities

across the nation, and particularly for communities

' The City and the TWDB filed separate lawsuits challenging

FWS’'s decision to create the refuge The cases were

consolidated. The TWDB is filing a separate petition for a writ

of certiorari at the same time this petition is being filed. ‘The

City respectfully suggests that this Court consohdate the

petitions and c mr sict r them together

3

in the south and the arid west that routinely suffer

from drought and water scarcity.

STATEMENT OF THE CASE

A. The City’s and State’s Plans for Designation

of Fastrill Reservoir

In an effort to address Texas’ persistent

problems with respect to droughts and water

shortages, in 1997 the Texas Legislature amended

the Texas Water Code, and significantly changed

water development and management for the State.”

Under this Texas law, the TWDB is “responsible for

administering a comprehensive statewide planning

process intended to develop, manage, and conserve

the water resources of the State of Texas.” App. 22a

n.1 (citing Tex. Water Code § 16.051(a) (Vernon

2007)). The 1997 amendments created regional

planning groups that must consider “environmental

water needs,” water conservation and reuse, the

development of new water supplies, and the effects

of developing new water supplies on the State’s

waters. Tex. Water Code §§ 16.053(e)(5)(C),

(Vernon 2007). The City is in Region C, one of

Texas’ regional planning groups that report their

water management strategies to the TWDB. App.

22a,n.l.

Due to population growth, increased municipal

needs, and periodic droughts, the City’s water needs

are forecasted to grow significantly. The Region’s

Water Plan anticipates a critical shortage beginning

? See Act. of dune 1, 1997, 75th Leg., K.S., ch. 1010, §§ 1.01-.02,

1997 Tex Gen. Laws 3610 (amended) (codified at Tex. Water

Code §§ 16.051-.053 (Vernon 2007))

4

as early as 2010. These water shortages will have

real consequences, not only on the “public health,

safety, and welfare,” and “natural resources,” Tex.

Water Code § 16.053(a), but, according to the 2006

Regional Water Plan, these shortages will engender

socio-economic impacts, including reduced

population, reduced jobs, lost income, and decreased

tax revenues.

Only an extremely limited number of areas in

Texas are suitable for reservoir construction, given

hydrology, typography, geology water transport

issues, and other factors. Fastiull Reservoir was first

identified in 1961, and included in 1984, 1997, 2001,

and 2006 water management planning documents.

App. 2a, 37a. According to the 2006 Regional Water

Plan, Fastrill Reservoir is “uniquely suited to

provide water supply,” and is one of the City’s few

potential reservoir locations. Located along the

upper Neches River, the State has designated it as a

“critical resource” and “major recommended water

strategy.” App. 3a-4a. In fact, the record indicated

that Fastrll Reservoir is the on/y new reservoir

planned for the City in the next 50 years.

B. FWS’s Plans To Designate The Refuge

In its 1985 “Land Protection Plan for Bottomland

Hardwoods, Category 3, Texas and Oklahoma,” FWS

identified much of the same area along the upper

Neches River as one of many potential new wildlife

refuge sites. App. 3a, 23a. Although FWS prepared

a draft Environmental Assessment (“EA”) for the

project in 1988, the refuge proposal was set aside

due to lack of funding. App. 3a. After the City and

State moved forward with their water management

activities for the site, FWS revisited its proposal,

~

0

initiating public comment in June 2004 and issuing

a draft EA in May 2005. App. 3a. The draft EA was

only 38 pages (App. 4la) and, while it mentioned

that the City’s plans for the reservoir dated back to

the 1980s, the EA did not include a substantive

discussion of the proposed action’s effects on the

City’s and State’s water supplies. According to FWS,

“because the Reservoir project was far beyond the

planning horizon for the Refuge proposal, it was too

speculative to determine how the two projects might

interface.” App. 44a.

The City participated in the pubhc comment

process and gathered additional information to aid

FWS in its decision making. On March 9, 2005, the

Dallas City Council, now aware that FWS was

revisiting its refuge proposal, passed a resolution

expressing its desire to work with FWS on a plan

that would allow a refuge and reservoir to coexist,

and funding a feasibility study. App. 3a. In its May

31, 2005 comment letter on the EA, the City asked

FWS to postpone its refuge proposal until after the

City completed its feasibility study, which would

determine how a wildlife refuge and reservoir could

complement one another. Other parties made

similar comments. After the two-month public

comment period, FWS did not revise a single word of

its draft EA and a final EA was never issued. App.

3a.

On July 28, 2005, FWS determined that an

Environ nental Impact Statement (“EIS”) was not

necessary and issued a Finding of No Significant

Impact (“FONSI”). App. 3a. In its FONSI, FWS

claimed the reservoir was “speculative” and, for the

first time, indicated that it was limiting its analysis

of the impacts of its decision to only the next 20

6

years. As such, the FONSI did not consider the

effects of water shortages. On June 11, 2006, the

FWS Director signed the decision document,

designating a 25,28l-acre site within Texas’

Anderson and Cherokee Counties as the Neches

River National Wildlife Refuge. App. 23a. By its

nature, the establishment of a national wildlife

refuge permanently forecloses the use of the land

within it for any purpose inconsistent with the

refuge. On August 23, 2006, FWS accepted the

donation of a one-acre conservation easement within

the acquisition boundary of the refuge. App. 4a.

C. District Court’s Decision

On January 10, 2007, the City and the TWDB

(collectively, “Plaintiffs”) filed separate actions, in

two separate United States District Courts in Texas,

against the U.S. Department of Interior, the U.S.

Fish and Wildlife Service, and the responsible

officials (collectively “FWS’”). The cases were

subsequently consolidated in the Northern District.

Plaintiffs argued, among other things, that FWS

violated NEPA because the draft EA (i) failed to

analyze the environmental and human impacts of

the refuge on the State’s and City’s water supply,

(ii) analyzed an unreasonably narrow range of

alternatives, and (ill)inappropriately relied on

antiquated data lifted from the previous 1988 draft

EA. The parties filed cross-motions for summary

judgment on the Plaintiffs’ NEPA claims. On June

30, 2008, the District Court granted FWS’s motion

for summary judgment on all of the Plaintiffs’ NEPA

claims, and denied the Plaintiffs’ summary judgment

motions. The Distnct Court's decision relied heavily

upon Sabine River Authority v. U.S. Department of

a

4

Interior, 951 F.2d 669 (5th Cir. 1992). App. 29a-37a;

see also App. 5a.

Notwithstanding the States comprehensive

analysis of both water shortages and the ways to

address those shortages, the district court held “the

effects of FWS’s action upon the City’s and the

State’s [water] supplies are not within the scope of

NEPA” because “[w]hile it is reasonably foreseeable

that establishment of the Refuge will cause the

Reservoir to be thwarted, it is beyond FWS’s

capability and NEPA’s scope to require FWS to

identify all possible consequences that could be

caused by the Reservoir not being built.” App. 38a

(emphasis added). The court also affirmed FWS’s

refusal to consider the City’s’ proposed joint

refuge/reservoir alternative, finding that “[tjhe

Reservoir would not even be constructed until 2050

and planning for its construction was in the

preliminary stages,” therefore “it was not arbitrary

and capricious for FWS to conclude that a combined

Refuge/Reservoir alternative would be _— too

speculative.” App. 44a-45a. Finally, the district

court affirmed FWS’s reliance upon a twenty-year-

old study based upon even older environmental data.

The court concluded that the City did not prove “the

new data and conclusions [the City provided to FWS]

affect the ultimate environmental assessment,” and

held that FWS did not act arbitrarily and

capriciously. App. 5la.

On September 4, 2008, the District Court

entered an amended partial final judgment. App.

5a. The City and the TWDB (collectively

“Appellants”) each filed a Notice of Appeal of the

district court's decision with the Fifth Circuit on

September 8, 2008. App. 5a. The appeal was

8

expedited on September 22, 2008. App. 5a. While

the case was pending before the Fifth Circuit, the

District Court granted Appellants’ Emergency

Motion for an injunction, finding there were serious

legal issues and Appellants were lhkely to suffer

irreparable injury if the injunction was denied. App.

65a-66a.

D. Fifth Circuit’s Decision

On March 12, 2009, the Fifth Circuit affirmed

the District Court’s decision. The court of appeals

held that FWS was not required to analyze the effect

of establishing the refuge on the State’s and City’s

water supplies and management plans. App. lla.

The court found that those effects “are highly

speculative and cannot be shown to be tke proximate

cause of future water shortages in Dallas.” App. lla.

Given “the long time frame for the project,” the court

found FWS’s EA need not consider the effects on the

City’s water supply because there was too much

uncertainty over whether the reservoir would be

constructed and the impact on City water supplies.

App. Lla.

The court of appeals also affirmed FWS’s refusal

to consider the TWDB’s and City’s proposed

alternative allowing a refuge and reservoir to co-

exist. App. 9a. The court quoted FWS’s explanation

in its FONSI, where FWS asserted it could not fully

evaluate a “dual proposal” (i.e., an alternative

permitting a reservoir and refuge to co-exist)

because reservoir planning was “speculative in the

short-term” and “far beyond the planning horizon for

9

the refuge proposal (i.e., 20 years).” App. 8a-9a.*

The court also concluded that “[t]he record reveal[ed]

no alternative that allowed construction of the

reservoir and served FWS’ goal of preserving the

bottomlands and wetlands of the Upper Neches.”

App. 9a (emphasis in original).

Finally, the court of appeals recognized that

“analyzing the risks of an action requires an agency

to use updated information or data” and that

“reliance on out-of-date ... information may render

the analysis of effects speculative and uncertain,

warranting the preparation of an EIS.” App. 1la-

12a. While the court recognized that “much of the

data in the [2005] EA was lifted from the earlier EA

prepared in 1988,”’ App. 12a, it nonetheless found

FWS’s use of older data was not unreasonable and

did not warrant further NEPA analysis. App. 13a.

The court indicated that Plaintiffs had failed to show

that the site had become so degraded (e.g., through

clearcutting) that FWS’s decision was arbitrary

under NEPA. App. 13a.

REASONS FOR GRANTING THE PETITION

NEPA’s fundamental purpose is to ensure that

public officials and citizens consider accurate

environmental information before decisions are made

and before proposed federal action is taken. 40

* The Fifth Circuit inaccurately attributed this 20-year

planning horizon to FWS's FA, it actually did not appear until

the subsequent FONSI.

* The EA was drafted in 1988 and relied primarily on data from

the 1960s, 1970s, and mid- 1980s

10

C.F.R. § 1500.1(b).° Agencies are required to comply

with NEPA’s procedural requirements “to the fullest

extent possible.” 42 U.S.C. § 4332; 40 C.F.R.

§ 1500.6; see also Flint Ridge Dev. Co. v. Scenic

Rivers Ass'n, 426 U.S. 776, 787 (1976). Judicial

review of a NEPA action arises under the

Administrative Procedure Act to determine whether

an agencys NEPA compliance is “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(a)(2). A court

conducts a “searching and careful” inquiry. Citizens

to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402,

416 (1971); App. 6a. “The hard look doctrine applies

to judicial review of agency decisions: courts must

take a hard look to ensure that the agency took a

hard look.” Daniel Mandelker, NEPA Law and

Litigation, § 3:7 at 3-15 (2d ed. 1999 & 2008 Supp.).

Judicial review ensures that agencies engage in

reasoned decision making, which includes an

objective discussion of assumptions, rebuttal of

contradictory evidence, and well-grounded record

references. /d.

Here, the Fifth Circuit’s opinion inappropriately

“rubber stamped” FWS’s NEPA decisionmaking,

excusing the agency’s failure to undertake a

“thorough investigation into the environmental

impacts of [its] action].]” Nat’! Audubon Soc’y v. U.S.

Dep’t of the Navy, 422 F.3d 174, 185-86 (4th Cir.

2005). The Fifth Circuit’s decision conflicts with

well-settled NEPA jurisprudence from other circuits,

and from this Court. Given the unique sovereign

a ri ‘ | y ‘

The CEQ was established under NEPA, and its regulations

are binding on federal agencies. App. |7a

1]

interests at issue, the confusion created by the Fifth

Circuit’s decision, and the circuit conflicts, this Court

should grant the Petition to review three aspects of

FWS’s NEPA compliance: its refusal to consider

indirect effects, its truncated consideration of

reasonable alternatives, and its relance on

antiquated environmental data.

A. The Fifth Circuit’s Application Of NEPA’s

Environmental Impacts Analysis Conflicts

With The Holdings Of Other Circuits.

The Fifth Circuit’s holding that FWS need not

analyze the environmental impacts of its proposed

action on the City’s and State’s water supply and

management because the _ reservoir was_ too

speculative, too far in the future, and lacked concrete

steps (e.g., permits and funding), App. lla, conflicts

with other circuits. These circuits have uniformly

required agencies to consider impacts on State water

resources. Not only does it trigger a circuit conflict,

but the decision also raises an important question

with widespread national implications: whether the

federal government can override the decisions of

state and local governments on issues vital to State

sovereignty, public health, and welfare, without

accounting for these governments’ long-term

planning and management.

1. This Case Presents A Conflict With

Other Circuits.

NEPA requires all] federal agencies to prepare an

EIS if their proposed action may significantly affect

the quality of the human envircnment. 42 U.S.C.

§ 4332(2)(C). To determine whether the more

detailed EIS is necessary, an agency may first

12

prepare an EA. 40 C.F.R. §§ 1501.4(b), (©). NEPA

and CEQ’s implementing regulations require an

agencys EA to consider direct, indirect, and

cumulative impacts associated with its proposed

action and alternatives. 42 U.S.C. § 4332(2)(C)@i);

40 C.F.R. §§ 1502.16(a), (b), 1508.7, 1508.8(a),

(b), 1508.9(b), 1508.14, 1508.25; App. Qa, 34a.

Indirect impacts include those “caused” by the

government’s actions, occurring “later in time or

further in distance,” but, that are, nonetheless

“reasonably foreseeable.” 40 C.F.R. § 1508.8(b); see

also App. 34a. They include “long-term effects,”

40 C.F.R. § 1508.27(a), as well as “beneficial and

detrimental effects, even if on balance the agency

believes the effect will be beneficial.” 40 C.F.R.

§ 1508.8(b). An agency cannot ignore the “uncertain,

but probable, effects of its decisions” simply because

they are in the future. CEQ, Forty Most Asked

Questions Concerning CEQ’s NEPA Regulations, 46

Fed. Reg. 18,026, 18,031 (Mar. 23, 1981) (Answer to

Question No. 18); see also City of Davis v. Coleman,

521 F.2d 661, 676 (9th Cir, 1975).

Before the Fifth Circuit’s opinion in this case,

the case law has been uniform and clear: agencies

cannot avoid their NEPA responsibilities by labeling

future environmental effects as “speculative,” even

when other projects have not yet been proposed. See,

e.g., Mid States Coal. for Progress v. Surface Transp.

Bd., 345 F.3d 520, 549-50 (8th Cir. 2003) (even if

6 Indirect environmental effects are “reasonably foreseeable” if

they are “sufficiently likely to occur that a person of ordinary

prudence would take [them] into account in reaching a

decision.” App. 9a-10a (quoting City of Shoreacres vu.

Waterworth, 420 F.3d 440, 453 (5th Cir 2005))

13

extent of future air pollution caused by increased

supply of coal produced due to proposed action is

speculative, the nature of effect is foreseeable and

agency may not ignore the effect in its analysis);

Muckleshoot Indian Tribe v. U.S. Forest Serv., 177

F.3d 800, 812 (9th Cir. 1999) (potential land

exchange not speculative where press release was

issued five months before Final EIS).’ “The failure

to fully consider an environmental impact has long

been held to be arbitrary and capricious under the

procedures set forth in NEPA.” Brady Campaign to

Prevent Gun Violence v. Salazar, -- F. Supp. 2d --,

No. 08-2243, 2009 WI. 763091, at *16 (D.D.C. Mar.

19, 2009).

“It must be remembered that the basic thrust of

an agency's responsibilities under NEPA is to predict

the environmental effects of proposed action before

the action is taken and those effects fully known

Reasonable forecasting and speculation is thus

implicit in NEPA[.]” Scientists’ Inst. for Pub. Info.,

Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092

(D.C. Cir. 1973); see also American Bird Cons. v. Fed.

Commc'ns Comm’n, 516 F.3d 1027, 1033 (D.C. Cir.

2008) (quoting same). An agency has a duty to make

a “good faith effort . . . to describe the reasonably

foreseeable environmental impact of the program,

alternatives to the program and their reasonably

foreseeable environmental impact, and_ the

irreversible and irretrievable commitment of

resources the program involves[.]” Scientists’ Inst.

for Pub. Info., 481 F.2d at 1092; see also 46 Fed. Reg.

See also Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir

1985), abrogated on other grounds by Sabine River Auth. v.

U.S. Dep't of Intervor, 951 F.2d 669 (Sth Cur, 1992)

14

at 18,031 (Answer to Question No. 18: agency must

“make a good faith effort to explain the effects that

are not known but are ‘reasonably foreseeable’ ”).

Here, the court of appeals approved, with little

analysis or explanation, FWS’s (i) adoption of a 20-

year time horizon in its FONSI thereby avoiding

analysis of impacts on future water supplies,’ and

(ii) concomitant assertion that the reservoir was

“highly speculative.” App. 8a-9a, lla, 13a-l4a. The

court erred in rubber stamping FWS’s assertion in

its draft EA that the reservoir was “speculative in

the short-term,” App. 9a (quoting FONSI, and

“highly speculative” given the “long time frame for

the [reservoir] project.” App. lla; see also App. 13a-

14a (upholding FWS’s 20-year planning horizon).

The court of appeals compounded its error by

ignoring the City’s and State’s significant water

management activities taken over the last decade to

implement the reservoir, instead focusing on the lack

of permits, land acquisition, and additional studies

“necessary to a major public works project.” App.

lla.’ Based on this superficial analysis, the court of

appeals dismissed the State’s and City’s legitimate

concerns, concluding “the effects of establishing the

8 Federal agencies, including WS, regularly analyze impacts

from projects over substantially longer planning horizons. See,

v.g., 72 Fed Reg 10,719, 10,720 (Mar. 9, 2007) (Draft EIS

evaluated no-action alternative over 50-year horizon)

” Here, the Fifth Circuit misstates the facts. FWS’s FONSI

acknowledges it was aware that (i) l’astrill Reservoir was

included in a senes of water management and planning

documents, and (ii) a reservoir yield and feasibility study that

included hydrological assessment, costs, scope and impacts of

such a proposal was underway while the draft KA was

published for public comment

15

refuge on [State] water supplies are not concrete

enough, nor closely enough related to the federal

action, to require that they be included in the KA.”

App lla.

The implications of these intertwined findings

are two-fold. First, FWS need not analyze the

impacts of establishing a refuge on the State’s and

City’s planned reservoir and future water supplies.

App. 10a-1la. Second, FWS may adopt an

artificially narrow range of alternatives to preclude

consideration of a joint refuge/reservoir alternative.

App. 8a-9a, 44a-45a.

The court’s finding that FWS need not consider

these impacts violates well-established NEPA

jurisprudence, which requires the indirect and

cumulative effects analysis to consider “reasonably

foreseeable future projects,” not just shovel-ready

projects that are permitted and fully-funded.

Importantly, under Texas law, the State and

localities are required every five years to plan their

water resource and supply management activities for

50 years into the future. Here, the district court

acknowledged “Fastrill Reservoir was listed as a

planned reservoir in two regional water plans, a

potential construction date has been set, the facility

and unit costs are calculated, and the economic

consequences of not adopting the proposed water

management strategies have been estimated.” App.

36a.!° The City also conducted a Fastnll Reservoir

Yield and Feasibility Study (March 2006 Draft),

which provided additional information on the need

for Fastrill Reservoir. FWS ignored the wealth of

10 But see App. lla (claiming the City “never identified the

precise role fof] the reservoir )

16

information available from the City and the TWDB,

choosing instead to adopt an artificially constricted

approach which circumvented any analysis of

impacts on State water resources.

Other circuits have held that NEPA prohibits an

agency from using such a results-oriented approach.

For example, the Ninth Circuit holds that NEPA

requires agencies to consider other “proposed

actions” regardless of whether those actions have

received permits or are shovel-ready. Oregon

Natural Res. Council v. Marsh, 832 F.2d 1489, 1498

(9th Cir. 1987), rev'd on other grounds, 490 U.S. 360

(1989); cf. Border Power Plant Working Group v.

U.S, Dep’t of Energy, 260 F. Supp. 2d 997, 1032 (S.D.

Cal. 2003) (rejecting agency’s unsupported assertion

that future power plants were “rumors” and

requiring agency to demonstrate that it took “hard

look” at whether future power plants were

reasonably foreseeable).!!

The decision also conflicts with First and Ninth

Circuit decisions that require NEPA analysis of any

project if the plans are sufficiently precise to

describe impacts “now” with sufficient specificity. In

Sverra Club v. Marsh, 769 F.2d 868, 872, 878 (1st

Cir. 1985), the First Circuit rejected the argument

that a future project was too speculative simply

because its precise nature and shape were unknown

'' Prior Fifth Circuit precedent was consistent with the Ninth

Circuit's rule See, eg., Fritiofson, 772 F.2d at 1247

Shoreacres, 420 I’.3d at 453 n.13; Texas Comm. on Natural Res.

v. Van Winkle, 197 F Supp. 2d 586, 619 (N_D. Tex. 2002)

(impacts of neighboring land use plans were reasonably

foreseeable where financing was passed and several studies

recommended the actions, even though no permit approvals

had been granted)

17

There, the court found that the agency had to

consider plans and studies completed by the

community and property owner in its EA because

the effects at issue were precise enough to be

considered, and required the agency to prepare an

EIS. Jd. at 877-79. Likewise, in Oregon Natural

Resources Council Fund v. Goodman, 505 F.3d 884,

892-93 (9th Cir. 2007), the Ninth Circuit remanded

the Forest Service’s NEPA analysis because it failed

to consider the impact of two future, reasonably

foreseeable, projects on the agency’s expansion of a

ski area.

This decision is also contrary to the District of

Columbia and Ninth Circuits clear directive:

“[rljeasonable forecasting and speculation is .

implicit in NEPA, and we must reject any attempt

by agencies to shirk their responsibilities under

NEPA by labeling any and all discussion of future

environmental effects as ‘crystal ball inquiry.”

Scientists’ Inst. for Pub. Info., 481 F.2d at 1092; Kern

v. Bureau of Land Mgmt., 284 F.3d 1062, 1072 (9th

Cir. 2002) (quoting same). In Kern, the Ninth

Circuit held that BLM’s cumulative impacts analysis

for selected timber sales was “inadequate under

NEPA” because “it performs no cumulative umpact

analysis of ‘reasonably foreseeable future actions’

outside the [administrative unit].” Jd. at 1075.

Further, if an agency utilizes a limited temporal

scope, as the FWS did here, the agency must

demonstrate that it “considered the relevant factors

and articulated a rational connection between the

facts found and the choice made.” Selkirk

Conservation Alliance v. Forsgren, 336 F.3d 944, 954

(9th Cir. 2003) (quoting Washington Crab Producers,

Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.

18

1990)). For example, in Selkirk, a case the Ninth

Circuit deemed “extremely close,” the court upheld

the Forest Service’s selection of a three-year time

period to analyze the timber harvesting project

effects because the governing state regulations were

“emergency” rules in place for only three years while

permanent rules were being drafted, and the federal

rules were also in a state of flux. 336 F.3d at 962-63.

In this case, there is no evidence in the record

nor any case law to support FWS’s post hoc 20-year

time horizon, and the Fifth Circuit should not have

approved it. FWS seeks to create a permanent

refuge which will lock up the land forever and

foreclose the Citys development of Fastrill

Reservoir. See, e.g., 65a-66a. Further, the refuge is

just as speculative as the reservoir, given that

refuges are usually completed over long time

periods, there is no assurance that funding will be

available to acquire all of the land within the refuge

boundaries within a 20-year timeframe, and internal

FWS documents indicated this refuge was ranked

last among a crowded field of Texas projects vying

for hmited funding.

2. The Fifth Circuit’s Finding That The

Reservoir Was Speculative Led It To

Approve An Unreasonably Narrow

Range Of Alternatives.

The Fifth Circuit’s approval of FWS’s narrow

range of alternatives was based on the erroneous

conclusion that the reservoir was too speculative for

the agency to consider a “dual proposal” that would

allow the reservoir and refuge to coexist. App. 8a-9a.

NEPA requires that an EA (lke an EIS) include a

reasonable range of alternatives to the agency's

19

proposed action. 42 U.S.C. §§ 4332(2)(C)G@i), (EF); 40

C.F_.R. §§ 1508.9(b), 1508.25(b); 46 Fed. Reg. at

18,026, 18,037 (Answers to Question Nos. la, 36a).

The alternatives section is the “heart” of the

environmental review, 40 C.F.R. § 1502.14, and

NEPA mandates that the agency “study, develop,

and describe appropriate alternatives to j[the!

recommended courses of action in any proposal

which involves unresolved conflicts concerning

alternative uses of available resources.” 42 U.S.C.

§ 4332(2)(E); see also 40 C.F.R. § 1507.2(d). Under

NEPA, resources include water. See, e.g., Olmsted

Citizens for a Betier Cmty. v. United States, 793 F.2d

201, 205 (8th Cir. 1986). The alternatives analysis is

particularly important when an EA is proposed. See

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

1296 n.9 (8th Cir. 1990) (alternatives requirement is

the major environmental responsibility that agencies

must meet when EA prepared); Envtl. Def. Fund,

Inc. v. Army Corps of Eng’rs, 492 F.2d 1123, 1135

(5th Cir. 1974) (alternatives analysis in an EA is

“supplemental to and more extensive” than that in

EIS); accord Olmsted Citizens, 793 F.2d at 208. An

agency cannot narrowly restrict its alternatives

analysis, ignore a commenters suggested

alternatives, or consider only a limited geographical

scope when the proposed project’s purpose is not

similarly constrained. Davis v. Mineta, 302 F.3d

1104, 1120-22 (10th Cir. 2002); Muckleshoot Indian

Tribe, 177 F.3d at 813.

Several circuits, including the Fifth Circuit, have

recognized that an alternative is per se “reasonable”

when it achieves the purpose and need statement

articulated in the agency's EA. ‘TIlio’ulaokalani Coal.

v. Rumsfeld, 464 F.3d 1083, 1097 (9th Cir. 2006);

20

Citizens Against Burlington, Inc. v. Busey, 938 F.2d

190, 198 (D.C. Cir. 1991); City of New York v. U.S.

Dep't of Transp., 715 F.2d 732, 743 (2d Cir. 1983),

appeal dism’d, 465 U.S. 1055; Sierra Club v. Lynn,

502 F.2d 43, 62 (5th Cir. 1974). Here, the court

formulated its own, much narrower purpose and

need statement to dismiss the City’s proposed

refuge/reservoir alternative. App. 9a. FWS’s draft

EA never limited the purpose and need of the

agency's action to a particular section of the Neches

River that might preclude the joint refuge/reservoir

alternative.

The Court’s newly-articulated rationale conflicts

with both the Seventh and Ninth Circuits, which

prohibit agencies from considering alternatives in

only one discrete area when the agency’s purpose

and need statement is not similarly confined. See,

e.g., Summons v. Army Corps of Eng’rs, 120 F.3d 664,

669 (7th Cir. 1997); Methow Valley Citizens Council

v. Regi Forester, 833 F.2d 810, 815 (9th Cir. 1987),

overruled on other grounds sub. nom. Robertson v.

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

In allowing FWS to adopt two nearly identical

alternatives (see App. 3a), the Fifth Circuit’s decision

also directly conflicts with decisions by the Ninth

and Tenth Circuits. Those circuits forbid agencies

from limiting their alternatives analysis to only a no-

action alternative and other “virtually identical

alternatives.” Ctr. for Biological Diversity v. Nat'l

Highway Traffic Safety Admin., 538 F.3d 1172,

1218-19 (9th Cir. 2008) (agency’s consideration of

five alternatives was “a very narrow range” given

their similarity); Davis v. Mineta, 302 F.3d at 1122

(finding agency violated NEPA when its EA

improperly rejected alternatives “in a conclusory and

21

perfunctory manner” and only studied in detail the

no-build alternative and the preferred alternative);

Muckleshoot Indian ‘Tribe, 177 F.3d at 813

Gnvalidating Forest Services EIS for a_ land

preservation proposal that considered a no-action

alternative and twe virtually identical alternatives,

with one being slghtly larger than the other);

Klamath-Siskiyou Wildlands Ctr. v. U.S. Forest

Serv., 373 F. Supp. 2d 1069, 1088 (E.D. Cal. 2004)

(agency's evaluation of two nearly identical

alternatives along with a no-action alternative failed

to satisfy “hard look” requirement); Natural Res. Def.

Council, Inc. v. Evans, 168 F. Supp. 2d 1149, 1160

(N.D. Cal. 2001) (EA’s alternatives inadequate

because agency only considered no-action and

preferred aiternative), different portion of opinion

vacated, 316 F.3d 904 (9th Cir. 2003).

Moreover, the administrative record

demonstrates that, in its comments on the EA, the

City requested that FWS consider a_ joint

refuge/reservoir alternative. When, as here, another

alternative was raised during the comment period,

other Circuits require the agency to explain why it

rejected the proposed alternative. See, e.g., Dubois v.

U.S. Dep’t of Agric., 102 F.3d 1273, 1288 (1st Cir.

1996) (“Instead of ‘rigorously explor[ing]’ the

alternative ... [the] Final EIS did not respond to

these comments at all. ... This failure violated the

[Agency’s] EIS obligation under NEPA.”); NRDC,

168 F. Supp. 2d at 1160 (EA’s alternatives

inadequate when agency did not explain its failure to

address commentor’s proposed alternatives); 40

C.F.R. § 1502.14(a); 46 Fed. Reg. at 18,035 (Answer

to Question No. 29b: agency must respond to a

commentors reasonable alternative, including

22

alternatives discovered or developed. later, and

discuss that alternative in supplemental analysis).!2

NEPA’s public comment procedures are “at the heart

of the NEPA review process,” and an agency’s failure

to consider the public’s comments deprives decision

makers and the public from an opportunity to

consider other alternatives. See, e.g., California v.

Block, 690 F.2d 753, 770 (9th Cir. 1982). Here, the

court should have required FWS to either analyze a

joint refuge/reservoir alternative, or explain why it

did not meet the purpose and need of the agency’s

action.

The Fifth Cuircult’s cecision inappropriately

shifted the burden for developing alternatives from

FWS to the City. The Second, Ninth and Tenth

Circuits all prohibit an agency from shifting its

NEPA duties to the public. County of Suffolk v. Sec’y

of the Interior, 562 F.2d 1368, 1385 (2d Cir. 1977);

see also Jette v. Bergland, 579 F.2d 59, 63 (10th Cir.

1978), overruled on other grounds, Village of Los

Ranchos De Albuquerque v. Marsh, 956 F.2d 970

(10th Cir. 1992); Coleman, 521 F.2d at 671. Cf.

Public Citizen, 541 U.S. at 764-65 (noting agency

bears primary responsibility for ensuring NEPA

complanee and rejecting argument that NEPA

analysis was inadequate because challengers had

not adequately alerted the agency to their position

- Cf. Sabine River Auth. v. U.S. Dep't of Interior, 745 F. Supp

388, 400 (E.D. Tex. 1990) (in response to comments on its draft

EA, FWS revised its draft EA to () include “a responsive

discussion of the water-supply issues raised by [Sabine River

Authority],” and (i) “address the alternative of establishing a

re'uge in conjunction with the Waters Bluff [reservoir]

project’).

23

and contentions to allow the agency to meaningfully

consider them). Further, an agency is not absolved

from considering an alternative because a specific

proposal was not received until after the closure of

the public comment period. 46 Fed. Reg. at 18,035

(Answer to Question No. 29b). Review by this Court

is necessary to resolve the conflicts this erroneously-

decided case has created.

3. The Issue Presented By The Conflict

Has Great Practical Import.

The Fifth Circuit's ruling has a significant

impact on the millions of current and future

residents of North Texas. The NEPA and federalism

issues raised here also extend beyond Texas’ borders.

The consequences of this holding resonate with long-

term state and local planning and management

activities across the nation. And the decision

implicates not just water management issues, but

also has import any time federal and state or local

governments seek to use the same limited natural

resources for different purposes.

There is no question that an adequate water

supply fulfills one of NEPA’s central purposes, to

“promote efforts which will. . . stimulate the health

and welfare of man.” 42 U.S.C. § 4321; Friends of

Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501,

505 (6th Cir. 1995) (the delay and cost associated

with preparation of an EIS would harm the

otherwise positive impact on health and welfare that

the dam project would otherwise promote). NEPA

and CEQ’s regulations require agencies to consider

these types of effects on the human environment.

See 42 U.S.C. § 4331(a); 40 C.F.R. §§ 1508.14,

1508.27(b)(2). Courts have repeatedly held that

24

water is a vital component of the human

environment, and courts require federal agencies to

analyze the potential impacts of their actions on

water resources. See, e.g., Olmsted Citizens, 793

F.2d at 205 (EIS generally required for federal

actions that threaten water supply); Coleman, 521

F.2d at 675 (ong-term water supply effects must be

considered in NEPA analysis); United States v. 27.09

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

(“even marginal degradation of drinking water is

environmentally significant” requiring EIS); North

Carolina v. Hudson, 731 F. Supp. 1261, 1273

(E.D.N.C. 1990) (“[w]Jater is a necessity of life. Itisa

valuable resource which must be protected and

conserved and shared by all”). |

If the Fifth Circuit is correct, federal agencies

are free to ignore the Citys and the State’s

legislatively-mandated water management § and

planning activities as pure speculation. By allowing

FWS to truncate its NEPA effects analysis and label

Appellants’ water management activities

“speculative,” the Court eviscerates the Appellants’

sovereignty over State waters. Such an approach

clearly conflicts with this Court's edicts limiting the

federal government’s ability to dictate issues such as

land and water use planning, which = are

“quintessential state and local power[s].” Rapanos,

547 U.S. at 737-38; see also Georgia v. Tenn. Copper

Co., 206 U.S. 230, 237 (1907) (state has independent

interest in “all the earth and air within its domain’);

Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497,

518-19 (2007) (quoting same).

As the number of prime reservoir locations

decrease, the State and its citizens are left with less

desirable alternative sites that are more expensive

20

and more environmentally costly. These alternative

sites also place existing water supplies under

additional stress given increased demand, which

could in turn decrease water supply and harm the

well being of the citizens and businesses that depend

upon those supplies. The implications of a water

supply crisis are dire: water scarcity threatens

people, as well as flora, fauna, and water bodies.

Further, limited supplies will create additional

conflict between various government entities and

regions who are all seeking to create new reservoirs

to meet existing and future demand.

Presciently, Petitioner Texas Water

Conservation Association (“IT'WCA”) argued in its

petition to this Court that the Fifth Circuit’s decision

in Sabine River would be used to prevent or impact

other, future water supply projects, and that FWS

could continue to take “every remaining surface

water supply site in Texas out of development

without ever considering a critical impact on human

health and welfare.” TWCA Pet. for a Writ of Cert.,

No. 91-1927, 1992 WL 12074373, at *7 (June 2,

1992). That is precisely what has happened. This

case reinforces the Fifth Circuit’s holding in Sabine

River, that a federal agency can arbitrarily block

important State water supply management and

planning simply by moving to preserve land, thereby

escaping NEPA’s “hard look” requirements. ‘This

conflict between the federal government’s desire to

preserve land for wildlife and the state and local

government's need to provide an adequate water

supply for their citizens will continue to be intense

and recurring. Review by this Court is warranted to

resolve this important issue with severe, deleterious

effects on public health and welfare.

26

B. The Fifth Circuit’s Decision That The

Refuge Was Not The Proximate Cause Of

The Effects On The State’s Water Supply

Fails To Follow This Court’s Precedent.

The Fifth Circuit’s conclusion that “the effects of

establishing the refuge . . . cannot be shown to be the

proximate cause of future water shortages in

Dallas,” App. lla, conflicts with this Court’s

jurisprudence, as enunciated in Metropolitan Edison

Co. v. People Against Nuclear Energy, 469 U.S. 766

(1983), and further expounded upon in Public

Citizen. Public Citizen considered whether the

Federal Motor Carrier Safety Administration’s

(““FMCSA”) NEPA analysis of its proposed

regulations had to consider the environmental

effects of Mexican trucks that would soon be allowed

to enter the United States. 541 U.S. at 762-64. This

Court upheld the agency's EA, because only the

President or Congress—not FMCSA—had the ability

to change the environmental effects. Jd. at 766.

Public Citizen’s key holding was that an agency’s

NEPA analysis need not consider effects “where

[that] agency has no ability to prevent a certain

effect due to its limited statutory authority over the

relevant actions, [because] the agency cannot be

considered a legally relevant ‘cause’ of the effect.”

Id. at 770; Florida Key Deer v. Paulison, 522 F.3d

1133, 1144 (11th Cir. 2008) (quoting same). The

court concluded: “because FMCSA has no discretion

to prevent the entry of Mexican trucks, its EA did not

need to consider the environmental effects arising

from the entry.” 541 U.S. at 770 (emphasis added);

see also Nat'l Ass'n of Home Builders v. Defenders of

Wildlife, 127 S. Ct. 2518, 2535 (2007). Public Citizen

27

and Shoreacres—which both found that an agency’s

NEPA analysis need not consider effects caused by

other federal government actors—do not apply

here. !%

Conversely, when an agency has authority to

create or prevent effects, NEPA requires a “hard

look” at those effects and their inclusion in the EA.

In Oregon Natural Resources Council Fund v. Brong,

492 F.3d 1120, 1134-35 n.20 (9th Cir. 2007), the

Ninth Circuit held that “Public Citizen’s limitation

on NEPA does not apply in this case” because “BLM

has significant authority (under [the statute at

issue]) to regulate private activities on public land,

including [the private company’s] use of public

roads.” See also Humane Soc’y v. Johanns, 520 F.

Supp. 2d 8, 23-27 (D.D.C. 2007).

Sierra Club v. Mainella, 459 F. Supp. 2d 76

(D.D.C. 2006) is on point and directly contrary to the

Fifth Circuit’s conclusion here. Mainella held that

the National Park Service’s (“NPS”) NEPA analysis

of permitted directional drilling operations beneath a

National Preserve must evaluate the impacts of the

surface activities of the drilling that would occur

outside the Park. Jd. at 105. The court rejected

18 Shoreacres was the only proximate cause case cited by the

Fifth Circuit, and it simply supplied the general proposition of

law that a Plainuff must establish the alleged effect is a

proximate case of the proposed agency action. App. 10a

Shoreacres rejected the argument that NEPA required the

Corps to account for the indirect effect of future ship channe!

deepening caused by a newly-permitted terminal because only

Congress—not the Corps—had authority to deepen the

channel. 420 F.3d at 452 In Shoreacres, there was no

proposal, no economic justification for deepening the channel in

the foreseeable future, and Congressional approval was

necessary and unhkely to occur for decades. /d. at 453

28

NPS’s argument that it did not have authority to

regulate surface operations outside the Park:

“Public Citizen extends only to those situations

where an agency has ‘no ability’ because of lack of

‘statutory authority’ to address the impact.” Jd. The

impacts of surface drilling activities had to be

analyzed because they were “functionally

inseparable from the downhole drilling activities”

that were the subject of the NEPA analysis, and

would only take place with NPS’s grant of operator

access. Id.

Similarly, in Save Our Sonoran, Inc. v. Flowers,

408 F.3d 1113 (9th Cir. 2004), the Ninth Circuit

considered whether the Corps’ NEPA analysis

needed to consider an entire residential development

when the Corps’ actions were limited to approving

permits to allow a residential developer to construct

road crossings and facilities over jurisdictional

waters. /d. at 1113. The Ninth Circuit agreed with

the district court's finding that the Corps’ analysis

violated NEPA when it failed to consider the

environmental effects associated with the entire

project. The court noted that “denial of a permit

would prevent the site from developing in a manner

consistent with the developer’s purpose” therefore

“the Corps permits would have an effect on the

whole property,” and the “NEPA analysis should

have included the entire property.” /d. at 1122.

The Fifth Circuit’s failure to follow this Court's

jurisprudence should be reviewed and overturned.

The operative question is whether FWS has the

ability (i.e., statutory authority) to prevent—or

create—the environmental impacts identified by the

City and the State. Here, the clear answer is yes.

As a direct result of FWS's refuge decision, the City

29

cannot build Fastrill Reservoir. There is a close

causal connection between the agency’s action and

the effects about which the City complains should

have been analyzed under NEPA (i.e., elimination of

an available source of human water supply). FWS’s

decision is “functionally inseparable” from the City’s

inability to use this site for a reservoir: no other

action permanently blocked the City from using this

location as a reservoir.

C. The Fifth Circuit’s Approval Of FWS’s

Outdated Data Conflicts With Decisions By

Other Circuits.

NEPA requires agencies to use _ accurate

information: “The information must be of high

quality. Accurate scientific analysis, expert agency

comments, and public scrutiny are essential to

implementing NEPA.” 40 C.F.R. § 1500.1(b); see also

id. § 1502.24; App. lla-12a; Jdaho Sporting Cong. v.

Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998)

(applying 40 C.F.R. § 1502.24’s scientific integrity

requirement to EA), overruled by Lands Council v.

McNair, 537 F.3d 981 (9th Cir. 2008). Agencies are

required to take a “hard look” at the environmental

consequences in the first place. Citizens’ Comm, to

Save Our Canyons v. Krueger, 513 F.3d 1169, 1178

(10th Cir. 2008).

Agencies must carefully reexamine their NEPA

analysis when it is more than five years old, and

supplement that analysis when there are significant

new circumstances or relevant information. 46 Fed.

Reg. at 18,036 (Answer to Question No. 32).

Agencies also have a duty to disclose to the public

when relevant data are incomplete or unavailable.

40 C.F.R. § 1502.22. An agency wiolates NEPA

3O

when it relies upon antiquated data. See, e.g., Lands

Council v. Powell, 395 F.3d 1019, 1031 (9th Cir.

2005).

Because the purpose of an EA is to determine

whether a proposed project’s impacts could be

potentially significant (and therefore require a more

detailed EJS), 40 C.F.R. § 1508.9(a)(1), the agency

must use high-quality information at the EA stage.

An EA—and the entire NEPA framework requiring

agencies to take a “hard look” at the potential

environmental consequences of an _ action—is

undermined if it is based on outdated, inaccurate

information. Poor quality data affects an agency’s

analysis of environmental consequences, impairs the

selection and evaluation of appropriate alternatives,

and prevents decision-makers and the public from

more fully understanding the effects of the agency’s

actions. N.C. Alliance for Transp. Reform, Inc. v.

U.S. Dep’t of Transp., 151 F. Supp. 2d 661, 695

(M.D.N.C. 2001).

FWS and the Fifth Circwt acknowledge that

FWS’s EA relies upon data from a 1988 Draft EA

completed almost 20 years earlier to analyze FWS’s

refuge alternatives and the refuge’s impacts on

wildlife, vegetation, the environment, air, and

socioeconomic conditions. App. 12a, 49a. Ignoring

NEPA’s clear purpose and other circuit holdings, the

court upheld FWS’s uninformed decision making.

The court of appeals erroneously accepted the

agency’s post hoc rationalizations in its briefing that

information compiled over the past two decades

would not have made a difference. Without citation,

the court placed the burden of NEPA complhance on

the City, stating that the City must compile baseline

information to show the “site had become _ so

31

degraded—for example, by substantial clearcutting of

the bottomland hardwoods such that it would not

support migrating waterfowl even if protected—such

a showing may well render the decision to rely on

older data arbitrary within the meaning of NEPA.”

App. 13a. The Fifth Circuit added that if an agency’s

actions superficially appear environmentally

beneficial, NEPA’s “high quality” data requirements

are optional. App. 12a (distinguishing instant case

because FWS action would not “intrude on a site”).

The court concluded that, under NEPA, reliance on

old data to assess environmental impacts in an EA is

not unreasonable. App. 13a. These holdings

contradict the letter and spirit of NEPA.

This Court’s review is necessary to resolve the

conflict this decision creates with other circuits. The

Ninth and Tenth Circuits require an agency's NEPA

analysis to be based on _ accurate, current

information.'4 Indeed, a stay of agency action is

appropriate if the agency relied on six-year-old data,

until accurate data is collected to provide a proper

assessment of a proposed action’s impact. Jdaho

Sporting Cong., Inc. v. Alexander, 222 F.3d 562, 569

(9th Cir, 2000). Here, as in Klamath-Siskiyou

4 See, e.g. New Mexico v. Bureau of Land Mgmt., 565 F.3d 683,

704-07 (10th Cir. 2009) (remanding to BLM to update its

analysis ‘9 consider the environmental impacts assocrated with

alternative introduced after the Draft EIS); Lands Council, 395

F.3d at 1031-32 (failure to disclose up-front in its NEPA

analysis the known shortcomings of its data and modeling

violates NEPA), Seattle Audubon Soc'y v. Espy, 998 F.2d 699,

704-05 (9th Cir. 1993) (agency’s reliance on “stale smentific

evidence’ violates NEPA and agency must re-examine its

chosen alternative); Klamath-Siskiyou Wildlands Ctr., 373 F

Supp. 2d at 1081 (ten-year-old wildhfe data inadequate)

32

Wildlands, FWS’s conclusions about the bottomliand

hardwoods and habitat it sought to protect “is based

on incomplete and outdated information, which

renders the overall conclusions uncertain.” 373 F.

Supp. 2d at 1081.

In its NEPA analysis, FWS made no effort to

obtain recent information en wildlife and bottomland

hardwoods within its proposed refuge boundary, but

instead relied upon the data in its 1988 Draft EA,

despite available evidence demonstrating that the

prior data was no longer reliable. See, e.g., App. 50a

(FWS’s 2004 site visit indicated land within

boundary “partially harvested since we looked at the

site in the late 1980s”). Unlike FWS, the City did

undertake an effort to analyze potential alternative

refuge sites, as well as recent bottomland hardwood

acreage. In the report it commissioned, the City

learned that, since 1985, bottomland hardwood

landcover within the designated refuge urea had

dwindled from 71 percent to 31 percent. App. 12a,

47a, 50a. This data “was available to FWS or was in

its possession at the time the agency decision was

made.” App. 47a n.8.

The agency ignored this more recent data during

its decisionmaking. In its briefing, FWS claimed, for

the first time, that this new information would not

have changed its analysis. This Court has never

tolerated such post-hoc rationalizations, or the

district court’s and Fifth Circuit’s reliance on them.

App. 12a & 48a. See, e.g., Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 212 (1988); Motor

Vehicles Mfrs. Ass'n, Inc. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983); see also Utahns for

Better Transp. v. U.S. Dep't of Transp., 305 F.3d

1152, 1165 (10th Cir. 2002) (courts consider agency’s

33

reasoning at the time of its decisionmaking, not

subsequent arguments in litigation).

The couri’s erroneous decision is not devoid of

consequences. If FWS was required to conduct an

analysis using recent environmental information,

FWS’s environmental impacts analysis would have

been different, and the agency may have decided to

designate a refuge in a different location, thereby

allowing the State and City to move forward with

their water management plans. The court did not

require FWS to meet NEPA’s hard look

requirements, and its decision conflicts with

decisions by the Ninth and Tenth Circuits.

The Fifth Circuit’s suggestion that older data is

sufficient for presumably “environmentally

beneficial” actions, App. 12a, directly conflicts with

the Tenth Circuit’s jurisprudence. The Tenth Circuit

has considered and rejected an “exception” for

perceived environmentally beneficial actions.'®> In

Catron County Board of Commissioners, New Mexico

uv. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir.

1996), the Secretary of Interior sought to designate

74 miles of river as critical habitat under the

Endangered Species Act (“ESA”). The Secretary

claimed these ESA activities were exempted from

NEPA, but the Tenth Circuit disagreed: “[w]hile the

protection of species through preservation of habitat

may be an_ environmentally’ beneficial goal,

Secretarial action under ESA is not inevitably

1S The Department of the Interiors NEPA Departmental

Manual confirms the point, finding that a new refuge system

unit—whose purpose is undoubtedly to protect’ the

environment—‘normally” requires an EIS when there are

conflicts with state and local land use. App. 16a (citing 62 Fed

Reg 2375, 2382 (Jan. 16, 1997))

34

beneficial or immune to improvement by compliance

with NEPA procedure.” Jd. at 1437 (emphasis

added); accord High Country Citizens’ Alliance uv.

Norton, 448 F. Supp. 2d 1235, 124& (D. Colo. 2006);

Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of

the Interior, 344 F. Supp. 2d 108, 134 (D.D.C. 2004).

See also Envtl. Def. Fund v. Marsh, 651 F.2d 983,

993 (5th Cir. 1981) (“NEPA is concerned with all

significant environmental effects, not merely adverse

ones.”). Given NEPA’s fundamental purpose to

inform the public and government officials of the

environmental consequences associated with an

agency's actions, FWS’s_ actions—even if the

designation of habitat is environmentally

beneficial—violated the Tenth Circuit's clear

precedent. See Catron, 75 F.3d at 1437.

35

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

| JOHN C. MARTIN THOMAS P. PERKINS,

| Counsel of Record JR. CHRISTOPHER D.

AMY B. CHASANOV BOWERS

Pation Boggs LL? City of Dallas

2550 M Street, NW | 1500 Marilla Street

| Washington, DC 20037 | Dallas, TX 75201

| (202) 457-6032 | (214) 670-3519

|S. CASS WELLAND

| ROBERT A. HAWKINS

| Patton Boggs LLP |

2001 Ross Ave., Ste. |

3000 |

Dallas, TX 75201

(214) 758-1504

| Counsel for Petitioner

APPENDIX

la

Filed March 12, 1009

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 08- 10890

CITY OF DALLAS, TEXAS

Plaintiff-Appellant

Vv.

H. DALE HALL, ET AL.

Defendant-Appellee

and

TEXAS WATER DEVELOPMENT BOARD

Plaintiff-Appellant

V.

UNITED STATES DEPARTMENT OF THE

INTERIOR, ET AL

Defendants-Appellees

Appeal from the United States District Court for the

Northern District of Texas

Before SMITH and SOUTHWICK, Circuit Judges,

and ENGELHARDT, District Judge.”

* District Judge of the Eastern District of Louisiana, sitting by

designation

2a

KURT D. ENGELHARDT, District Judge:

After preparing an Environmental Assessment

(“EA”) of the proposed Neches Wildlife Refuge in

East Texas, the U.S. Fish & Wildlife Service (“FWS’”)

announced its Finding of No Significant Impact

(“FONSI”), obviating the need to prepare an

Environmental Impact Statement (“EIS”). FWS then

set an acquisition boundary for the refuge and

accepted a conservation easement within that

boundary. These actions precluded a reservoir the

City of Dallas (“City”) and the Texas Water

Development Board (““TWDB”) had proposed for the

same site. The City and TWDB sued in federal

district court claiming that the EA that FWS

prepared was flawed, that under the National

Environmental Policy Act (“NEPA”) the agency was

required to prepare an EIS, and that the

establishment of the refuge violated the Tenth

Amendment. The district court dismissed several of

the Appellants’ claims and granted FWS’ motion for

summary judgment on others. We AFFIRM.

I. BACKGROUND

In 1961, the State of Texas first identified a site

along the Upper Neches River in Anderson and

Cherokee Counties as a potential reservoir to serve

the growing Dallas/t't. Worth Metroplex. Dubbed the

Fastrill Reservoir, the site was again included in a

state water agency resources plan in 1984, and in the

1997 and 2001 regional water plans issued by

TWDB. The City and TWDB’s plan envisioned

constructing the reservoir in 2050 and tapping it in

2060. There is nothing in the record pnor to 2005

that indicates that the City or TWDB took any steps

3a

to develop the site beyond including it—among other

possible reservoir. sites-in regularly updated

planning documents.

In 1985, FWS identified the same site as a

possible wildlife refuge, since its native bottomland

hardwood forest and wetlands provide an important

wintering habitat for migrating waterfowl. That

year, FWS listed the site as high-priority for

protection. FWS approved a preliminary refuge

proposal in 1988 and prepared a draft EA, but put

the project aside for lack of funding. The project was

revived in 2003 and the agency initiated public

comment in June 2004. Public workshops were held

in July 2004 and FWS made a presentation to the

regional water planning group in October of that

year. Another EA was prepared, which listed three

alternatives: no action, the recommended 25,281-

acre configuration, and a narrower 15,294-acre

configuration. The EA referenced the reservoir

proposal and noted that both the larger and smaller

refuge configurations would prevent the reservoir

from being built. The EA was distributed to public

officials and interested groups, open meetings were

held in May 2005, and it was open for public review

and comment for two weeks that same month. More

than 1,600 comments were received, but the EA was

not revised, and a “final” EA was not issued. On July

28, 2005, FWS concluded that an EIS’ was

unnecessary and prepared a FONSI.

By early 2005, the City was aware that FWS had

revived the refuge proposal. On March 9, 2005, the

Dallas City Council passed a resolution expressing a

desire to work with FWS on a plan that would allow

the reservoir and the refuge to coexist and

authorizing a feasibility study. On August 16th, the

4a

Texas legislature designated the Fastrill Reservoir

as a “critical resource,” and the January 2006

regional water plan recommended building the

reservoir as part of its water management strategy.

Meetings were also held between the director of FWS

and City representatives to discuss alternative sites

for the refuge, and state and FWS representatives

continued to communicate through the first half of

2006 about alternative plans that would allow a

refuge and a reservoir to coexist. The City and

TWDB scheduled—though did not actually begin-a

series of engineering and environmental studies. By

June 11, 2006, the day FWS designated an

“acquisition boundary” for the refuge encompassing

the larger 25,281-acre site, the feasibility study was

not completed nor had Appellants taken any

concrete steps toward planning the reservoir, such

as applying for permits. Accompanying’ the

designation was a Conceptual Management Plan

outlining how land within the boundary would be

acquired. The Neches Wildlife Refuge was set to

come into existence when FWS, by purchase or

donation, took title to or an interest in property

within the acquisitioi boundary. On August 23,

2006, FWS accepted a one-acre conservation

easement from a landowner within the acquisition

boundary.

TWDB and the City filed the instant suits on

January 10, 2007, arguing inter alia that the EA was

flawed, that FWS should have prepared an EIS, and

that the refuge violated the Tenth Amendment. On

October 24, 2007, the district court dismissed five of

the City’s claims, including the constitutional claim,

and two of TWDB’s claims, under Rule 12(b)(6). The

parties filed cross-motions for partial summary

judgment on the NEPA claims, and on June 30,

2008, the district court denied the Appellants’

motions and granted FWS’s motion. Relying heavily

on Sabine River Auth. v. U.S. Dep’t of the Interior,

951 F.2d 669 (5th Cir. 1992), the district court held

that an EIS was not required because the

establishment of the acquisition boundary did not

cause any change in the physical environment. The

court concluded that the refuge’s effect on the City’s

water supply was speculative and not within the

scope of NEPA. The court also found that the EA

considered a reasonable range of alternatives and

evaluated the necessary information. The City and

TWDB moved for an injunction pending appeal and

for entry of final judgment, which were granted on

July 28, 2008. The parties subsequently filed a joint

motion to amend the judgment, which was granted

on September 4, 2008. Notice of appeal was filed on

September 8, 2008, and the appeal was expedited on

September 22, 2008.

II. DISCUSSION

A, Standard of Review

We review the district court's grant of summary

judgment de novo. Terrebonne Parish Sch. Bd. v.

Mobil Oil Corp., 310 F.3d 870, 877 (5th Cur. 2002).

The court may only set aside an agency’s decision not

to prepare an EIS where a plaintiff establishes that

the decision was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A); see also Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 375-76 (1989); Kleppe v.

Sierra Club, 427 U.S. 390, 412 (1976). Under this

highly deferential standard of review, a reviewing

6a

court has the least latitude in finding grounds for

reversal. Sabine River, 951 F.2d at 678. Courts may

not use review of an agency’s environmental analysis

as a guise for second-guessing substantive decisions

committed to the discretion of the agency. But “fi]n

conducting our NEPA inquiry, we must ‘make a

searching and careful inquiry into the facts and

review whether the decision . . . was based on

consideration of the relevant factors and whether

there has been a clear error of judgment.” Marsh,

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

We review de novo a district court’s dismissal

pursuant to Rule 12(b)(6). Ballard v. Wall, 413 F.3d

510, 514 (th Cir. 2005). “All of the plaintiffs

allegations must be accepted as true, and the

dismissal will be affirmed only if it appears that no

relief could be granted under any set of facts that

could be proven consistent with the allegations.” Jd.

at 514-15 (internal quotation omitted). However,

“conclusory allegations or legal conclusions

masquerading as factual conclusions will not suffice

to prevent a motion to dismiss.” Taylor v. Books A

Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)

(quotation omitted).

B. Sufficiency of the Environmental

Assessment

NEPA does not require federal agencies to favor

an environmentally preferable course of action, but

rather requires that they take a “hard look at

environmental consequences.” Robertson v. Methow

Valley Citizen s Council, 490 U.S. 332, 350 (1989)

(quoting Kleppe, 427 U.S. at 410 n.21). The statute

requires “all agencies of the Federal Government .. .

[to] include Jan EIS] in every recommendation or

Ta

report on proposals for . . . major Federal actions

significantly affecting the quality of the human

environment.” 42 U.S.C. § 4332(2). An EIS is not

necessary when the federal action is not major or

does not have a “significant impact on _ the

environment.” Sabine River, 951 F.2d at 677. To

determine whether an EIS is necessary, an agency

will perform an EA. Sierra Club v. Espy, 38 F.3d 792,

802 (5th Cir. 1994); 40 C.F.R. § 1508.9(a)(1) (defining

an FA as a “concise public document” that “[{b]jriefly

provide[s] sufficient evidence and analysis for

determining whether to prepare an environmental

impact statement or a finding of no significant

impact”). An EA is “a rough cut, low-budget

environmental 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.” Sabine River, 951 F.2d

at 677 (citing Cronin v. U.S. Dep't. of Agriculture,

919 F.2d 439, 443 (7th Cir. 1990)). An EA will result

in a finding that an EIS is necessary or in a FONSI,

indicating that no further study of environmental

impacts is warranted. La. Crawfish Producers Ass’n-

West v. Rowan, 463 F.3d 352, 356 (5th Cir. 2006).

l. Failure to Consider Alternatives

An EA must discuss alternatives to the planned

action, but need not discuss all proposed

alternatives. See 40 C.F.R. § 1508.9(b) (assessment

“fs)hall include brief discussions of the need for the

proposal, of alternatives ... of the environmental

impacts of the proposed action and alternatives, and

a listing of agencies and persons consulted”); see also

La. Crawfish Ass’n, 463 F.3d at 355 (NEPA “does not

Ra

require that all proposed alternatives, no matter

their merit, be discussed in the EA.”). “[T]he range of

alternatives that the fagency] must consider

decreases as the environmental impact of the

proposed action becomes less and less substantial.”

Sterra Club, 38 F.3d at 803; see also Highway J

Citizens Group v. Mineta, 349 F.3d 938, 960 (7th Cir.

2003) (“When ... an agency makes an informed

decision that the environmental impact will be small

. a less extensive search [for alternatives] is

required.”). The rejection of even viable and

reasonable alternatives, after an appropriate

evaluation, is not arbitrary and capricious. See Miss.

River Basin Alliance v. Westphal, 230 F.3d 170, 177

(5th Cir. 2000).

The EA in this case noted that “the area under

consideration was identified in a preliminary study

by the Texas Water Plan as an area with the

potential for development as a reservoir... .” It also

noted that the City was considering a feasibility

study of the reservoir. It analyzed the effects of three

different alternatives (no action, a larger refuge, and

a smaller refuge) along multiple lines such as

climate and air quality, water resources, vegetation,

land use, and cultural resources. In each instance,

the EA acknowledged and attempted to analyze the

effect the alternative would have on the reservoir

proposal. The EA also analyzed the cumulative

impact of the refuge in conjunction with other “past,

present, and reasonably foreseeable future actions,”

including the reservoir.

Appellants argue that FWS was required to

consider an alternative that would allow the refuge

and the reservoir to coexist. In the EA, however,

FWS noted that it was unable to evaluate fully any

9a

such dual proposal, since plans for the reservoir were

“speculative in the short-term, . . . not definitive in

scope or purpose, and .. . far beyond the planning

horizon for the refuge proposal (i.e., 20 years).”

Additionally, after several weeks of consultation

between staff at FWS, the City, and TWDB, a TWDB

biologist admitted to the director of TWDB that “an

alternative site that is equal to or bigger and/or

better than the North Neches site has not yet been

identified.” The director echoed this assessment in a

letter to FWS. Only after the closure of the public

comment period and the drafting of the FONSI did

FWS receive a proposal for alternative refuge sites.

The alternatives included four other sites that

Appellants claimed were of greater environmental

value, since there was more bottomland hardwood

extant at these sites. Each of these alternatives,

however, envisioned building the Fastrill Reservoir

and the resulting inundation of the Upper Neches

area, with destruction of vegetation in that region.

The record reveals no alternative that allowed

construction of the reservoir and served FWS’ goal of

preserving the bottomlands and wetlands of the

Upper Neches. Under the circumstances, and

especially given that FWS concluded that the project

had no significant environmental impact, see Sierra

Club, 38 F.3d at 803, this range of alternatives was

reasonable.

2. Failure to Consider Impacts

An EA must analyze both the direct and indirect

effects of the proposed action that are “reasonably

foreseeable,” 42 U.S.C. § 4332(C)(ii); 40 C.F.R. §§

1502.16(a) & (b); 40 C.F.R. § 1508.7, which we have

defined as effects that are “sufficiently likely to occur

10a

that a person of ordinary prudence would take

[them] into account in reaching a decision.” City of

Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th

Cir. 2005). “Reasonable foreseeability” does not

include “highly speculative harms” that “distort[ ]

the decision making process” by emphasizing

consequences beyond those of “greatest concern to

the public and of greatest relevance to the agency’s

decision.” Robertson, 490 U.S. at 355-56 (nternal

quotation marks and citations omitted). “[A] ‘but for’

causal relationship is insufficient to make an agency

responsible for a particular effect under NEPA and

the relevant regulations. Rather, a _ plaintiff

mounting a NEPA challenge must establish that an

alleged effect will ensue as a ‘proximate cause,’ in the

sense meant by tort law, of the proposed agency

action.” City of Shoreacres, 420 F.3d at 452.

Appellants argue that FWS was required to

analyze the effect of establishing the refuge on the

City’s water supply and urban planning process,

given projected population growth. The cases cited by

Appellants are inapposite, however, since they

concern the _ effect of federal actions on

existing water sources, not proposed water sources.

See Sierra Club v. Marsh, 769 F.2d 868 (Ist Cir.

1985) (effect of port development runoff); City of

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

(effect of industrial development runoff); California

v. Dep’t of Transp., 260 F. Supp. 2d 969 (N.D. Cal.

2003) (effect of airport construction); Simmans uv.

Grant, 370 F. Supp. 5 (S.D. Tex. 1974) (effect of

eliminating water source). Plaintiffs do not cite to

any authority for the proposition that an agency

must account for the effects on a municipal water

supply of precluding a proposed but as-yet-

lla

nonexistent water source.

Further, the effects of establishing the refuge,

and thus precluding the reservoir, are highly

speculative and cannot be shown to be the proximate

cause of future water shortages in Dallas. The City

and TWDB never committed to constructing the

reservoir and may never have done so, or may have

constructed a reservoir at another site. Besides

including it in periodically updated planning

documents, the City and TWDB have never taken

any concrete steps toward constructing the reservoir,

such as seeking permits, acquiring property, or

commencing any of the hydrological, fiscal, or

environmental studies necessary to a major public

works project. In fact, the City and TWDB have

never even settled upon the exact position of the dam

or fvotprint of the reservoir. Thus, the City and

TWDB have never identified the precise role the

reservoir—even if constructed and tapped in 2060-—

will play in supplying the region’s future water

needs. Further, the City argues that water shortages

in the region will begin as early as 2010, yet the

reservoir would not be tapped earlier than 2060.

Given the uncertainty over whether the reservoir

will be constructed and its impact on water supplies,

and the long time frame for the project, the effects of

establishing the refuge on water supplies are not

concrete enough, nor closely enough related to the

federal action, to require that they be included in the

EA.

3. Reliance on Old Data

Appellants argue that FWS relied upon old data

in its EA. Properly analyzing the risks of an action

requires an agency to use updated information or

12a

data; reliance on _ out-of-date or incomplete

information may render the analysis of effects

speculative and uncertain, warranting’ the

preparation of an EIS. See Klamath-Siskiyou

Wildlands Ctr. v. U.S. Forest Service, 373 F. Supp.

2d 1069, 1081 (£.D. Cal. 2004). In this case much of

the data in the EA was lifted from the earlier EA

prepared in 1988. The City and TWDB note that

there has been degradation of the site and that a

significant portion of the Upper Neches bottomland

hardwoods have been cleared. However, the City and

TWDB have not shown that this information was so

flawed that it precluded assessment of reasonably

foreseeable impacts. Nor is it clear how, in this case,

additional information as to environmental

degradation of the Upper Neches would cause FWS

to conclude it should leave the site unprotected. In

this sense, the instant case differs from those cited

by Appellants, where additional or updated

information was needed before a reasoned decision

could be made as to whether to intrude on a site. See,

e.g., The Lands Council v. Powell, 395 F.3d 1019,

1031 (9th Cir. 2005) (additional information on

animal habitat needed before timber harvest could

commence)'; Idaho Sporting Congress v. Thomas,

137 F.3d 1146, 1150 (9th Cir. 1998) (additional

information on trout habitat needed before logging

could commence), overruled on different grounds, The

Lands Council v. McNair, 537 F.3d 981, 997 (9th Cir.

2008); Klamath-Siskiyou Wildlands Ctr., 373 F.

Supp. 2d at 1081 (additional information on owl

| Lands Council also differs from the imstant case in that it

involved an EIS, which is by design a more comprehensive

document than an EA

13a

population needed before logging could commence).

Undoubtedly, were a plaintiff to show that a site

had become so degraded—for example, by substantial

clearcutting of the bottomland hardwoods such that

it would not support migrating waterfowl even if

protected—such a showing may well render the

decision to rely on older data arbitrary within the

meaning of NEPA. No such showing has been made

in this instance. Here, the use of older data in an

EA-by definition a “rough cut, low-budget”

assessment of environmental impacts on the way to

determining whether an EIS is necessary, see Sabine

River, 951 F.2d at 677-cannot be said to be

unreasonable. Nor does the use of this data in this

instance support forcing the agency to engage in a

process likely, because of its lengthy timeline, to

permit further environmental degradation of the site

before a decision is reached.

4. The FWS Decision Making Process

Finally, the City and TWDB also argue that the

decision making process FWS engaged in was a

sham. Appellants point to several flaws: FWS’s

choice of a 20-year project horizon for analysis of

unpacts, its failure to coordinate with local and state

planning agencies in violation of CEQ regulations,

and its failure to publish a “final” EA. The record

reveals that FWS engaged in an extensive process of

public education and public comment and even

worked with officials from the City and TWDB to

identify an alternative site that weuld allow the

refuge and the reservoir to coexist. Emails between

various FWS officials reveal nothing more than an

appropriate advocacy for a favored § agency

alternative. In arguing that FWS was required to

14a

publish a “final” EA, Appellants cite only to non-

binding internal policy memos and not to any

binding regulation or statute. Appellants’ assertion

that FWS abused its discretion by failing to

“coordinate” with the local, regional, and state water

planning process falls short, since neither NEPA nor

any of the other statutes the City or TWDB cite

require an agency to insinuate itself into state

planning processes in the manner suggested. Finally,

Appellants fail to show that FWS’s 20-year planning

horizon was arbitrary and capricious under the

circumstances. As the district court noted, “FWS

must set some kind of time frame for its evaluations:

it cannot have an interminable planning period.”

City of Dallas, Tex. v. Hall, 2008 WL 2622809, at *14

n.10 (N.D. Tex. June 30, 2008).

B. Requirement ofan EIS

In arguing that an EIS was required, Appellants

attempt to distinguish this case from Sabine River.

In that case, strikingly similar to the present one,

FWS set an acquisition boundary for a wildlife

refuge on 3,800 acres in East Texas, and accepted a

negative, no-development easement from a

landowner inside the acquisition boundary. See

Sabine River, 951 F.2d at 674-76. The designation

precluded the construction of a proposed reservoir.

Id. at 673. The reservoir was in the preliminary

planning stage, and the state agency with

jurisdiction over it 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.” Jd. We

concluded that “the acquisition of a negative

a

easement which by its terms prohibits any change in

the status quo does not amount to ‘major Federal

action[ | significantly affecting the quality of the

human environment. ... The acquisition of a

negative easement which prohibits development does

not result in the requisite ‘change’ to the physical

environment.” /d. at 679-80 (citations omitted). The

acceptance of such an easement is “tantamount to

inaction,” and thus the acceptance “did not effectuate

any change to the environment which would

otherwise trigger the need to prepare an EIS.” 7d. at

680. In the instant case, the district court properly

set forth the factors to consider in applying Sabine

River. whether the agency action (1) precludes any

development of the land, (2) changes the character or

function of the land, and (3) prohibits any change in

the status quo of the land. City of Dallas, Tex., 2008

WL 2622809 at *5.

The City argues that three independent

authorities dictate that an EIS was required in this

instance: FWS’s own NEPA guidelines, the NEPA

implementing regulations issued by the USS.

Department of the Interior (“DOI”), and the NEPA

implementing regulations issued by the Council on

Environmental Quality (“CEQ”). The FWS guidelines

include a number of criteria to assist the agency in

determining whether an EIS is needed. Among these

are “increased safety or health hazards,” 550 FW

3.3(B)(2)(e), and “[a]ldverse effects on municipal,

industrial, or agricultural water supply or quality . . .

> id. at 3.3(B)(2)G). The City points to these

guidelines and argues that an EIS is required to

weigh adequately the health and water supply

effects of not building the reservoir. But these

guidelines have no binding force. See Coliseum

l6a

Square Ass'n, Inc. v. Jackson, 465 F.3d 215, 229 (5th

Cir. 2005) (“Generally, to be legally binding on an

agency, its own publications must have been

‘promulgated pursuant to a specific statutory grant

of authority and in conformance with the procedural

requirements imposed by Congress.”) (citation

omitted). When agency publications have not been

promulgated pursuant to a specific grant of statutory

authority, an agency’s decision to analyze impacts by

other methods is not automatically arbitrary and

capricious. /d. at 230. These guidelines were not

promulgated pursuant to law. Further, by their own

terms, they are meant to assist in determining

whether an EIS is necessary, not dictate when an

EIS is necessary, and carefully note that whether

any of the criteria triggers the need for an EIS

depends in each instance on “the severity and

duration of effects.” FW550 3.3(B)(2).

The DOI regulations the City points to are

binding on the agency, but they do not mandate the

preparation of an EIS in this case. In the

regulations, among the “Major Actions Normally

Requiring an EIS” are “major new refuge system

units . . . which involve substantive conflicts over

existing State and local land use [or] significant

controversy over the environmental effects of the

proposal.” 62 Fed. Reg. 2375, 2382. The City argues

that the refuge meets both these criteria. But by

their own terms, the regulations “normally” require

preparation of an EIS but do not dictate preparation

in each case. Further, the regulations clearly

envision that when, pursuant to an EA, the agency

determines that an action will have no major

environmental impacts, an EJS is not required even

when the action otherwise meets the criteria. /d. In

17a

this case, after preparing an EKA the agency made a

reasoned decision that there were no significant

environmental effects.

More importantly, by their own terms the

regulations only envision preparation of an EIS

when there is a conflict with “existing” State and

local land use or where there is “significant”

controversy over environmental effects. In this case,

while a feasibility study has been completed, the

City and TWDB have taken no concrete steps to

develop the reservoir (such as applying for permits),

much less put any land to use. The development of

an acquisition boundary does not conflict with

existing State and local use, but merely with a

potential future use. Further, the City and TWDB

have been unable to show with any specificity the

effects of setting the acquisition boundary. A

controversy such as this one-over the highly

speculative, uncertain effects of not building a

particular reservoir—cannot be “significant” within

the meaning of both the regulations and NEPA.

Similarly, while the CEQ regulations that the

City points to are binding on federal agencies, see

Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.

1985), they do not mandate the preparation of an

EIS in this case. The regulations merely require an

agency to determine whether an action is one that

normally requires an EIS. See 40 C.F.R. § 1501.4(a).

If the agency determines that the action does not

normally require an EIS, it then prepares an EA and

makes a finding as to whether the proposed action

has significant environmental impacts. ZJ/d. at

1501.4(b). In this case, as described above, FWS

properly prepared an EA and made a FONSI, as

envisioned by the CEQ regulations.

lRa

TWDB also argues that the instant case is

distinguishable from Sabine River because the

refuge designation in this case will cause changes in

the physical environment. As noted in the EA, FWS

envisions removing non-native tree species in the

refuge and reintroducing native hardwood and

evergreen species. TWDB_= argues that this

distinguishes the case from Sabine River, where

there was no evidence that the refuge site would be

changed in any way by the acceptance of an

easement. See Sabine River Auth. v. U.S. Dep’t of the

Intertor, 745 F. Supp. 388, 394 (F.D. Tex. 1990).

However, as the district court noted in its order

denying Appellants’ motion for partial summary

judgment, the action at issue here is the

establishment of an acquisition boundary for the

refuge. The establishment of that boundary does not

effect any change in the physical environment, but

merely authorizes the purchase of property from

willing buyers or the acceptance of conservation

easements. Once sufficient land is acquired, FWS

will be required to comply with NEPA in formulating

a Comprehensive Conservation Plan to guide refuge

forest management. If changes in the _ physical

environment are proposed in that plan, an EIS may

be required. But the present federal action will uave

no significant physical effects such that an EIS is

required.

As in Sabine River, where the acceptance of a

negative, non-development easement was

“tantamount to inaction,” Sabine River, 951 F.2d at

680, setting an acquisition boundary for the refuge

does not effect a change in the use or character of

land or in the physical environment. Thus, it is not a

“major Federal action[{] significantly affecting the

19a

quality of the human environment,” 42 U.S.C. §

4332(2), and no EIS is necessary under the

requirements of NEPA.

C. Tenth Amendment Claims

Finally, Appellants argue that the establishment

of the refuge is unconstitutional because it

impermissibly intrudes on state sovereignty and

violates the Property? and Necessary and Proper

Clauses.? Before ruling we must determine precisely

what, if any, issues are properly before us. In its

amended complaint, the City alleged that there was

not a sufficient nexus between the agency’s action

and interstate commerce, and that FWS violated the

City’s Tenth Amendment right to secure sufficient

water supplies for future residents. In its brief before

the district court, however, the City conceded that. it

could not challenge the constitutionality of the

statutes allowing for acquisition of property. The

City’s brief also did not argue a constitutional nmght

to secure water supplies, which the district court

nonetheless characterized as “a spurious argument

without legal basis.” City of Dallas, Tex. v. Hall, 2007

WL 3125311, at *11 (N.D. Tex. October 24, 2007).

Rather, the City asserted that FWS exceeded its

authority under the Tenth Amendment when it

established the acquisition boundary and accepted

the conservation easement, because it did so for the

purpose of commandeering the state’s water

planning process and thwarting the reservoir.

Because these were not the allegations pleaded in

the amended complaint, the district court declined to

ee — - —

2U.S. Const. art. 4, § 3, cl. 2

83U.S CONST. art 1,88, cl. 18

20a

consider them on the motion to dismiss for failure to

state a claim. The allegations in the amended

complaint, not having been appealed, are waived.

In its brief before this court, the City revises its

constitutional argument. In this iteration, the City

argues that FWS, by establishing the refuge, has

unconstitutionally invaded a traditional area of state

sovereignty—water and land use planning—without

clear authorization from Congress. Additionally, it

argues that establishing the refuge violates the

Tenth Ainendment by running afoul of the Property

and Necessary and Proper Clauses. These arguments

bear only a passing resemblance to the City’s

arguments on the motion to dismiss, and none at all

to its arguments in the amended complaint.

Accordingly, these arguments are not properly

presented and we decline to consider them. See

Singleton v. Wuff, 428 U.S. 106, 120 (1976) (“It is the

general rule, of course, that a federal appellate court

does not consider an issue not passed upon below.”):

Fed. Deposit Ins. Corp. v. Myalis, 15 F.3d 1314, 1327

(5th Cir. 1994) (“[I]f a litigant desires to preserve an

argument for appeal, the litigant must press and not

merely intimate the argument during the

proceedings before the district court. If an argument

is not raised to such a degree that the district court

has an oppurtunity to rule on it, we will not address

it on appeal.”).

Il. CONCLUSION

For the foregoing reasons, we AF‘'FIRM the

decisions of the district court.

Zla

Filed June 30, 2008

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CITY OF DALLAS, TEXAS.

Plaintiff

-

H. DALE HALL et al CIVIL ACTION NO

Defendants 3:07-C V-0060-P

Consolidated with

THE TEXAS WATER

DEVELOPMENT BOARD,

CIVIL ACTION NO

Plaintiff,

3:07-CV-0213-P

V

THE UNITED STATES

DEPARTMENT

OF THE INTERIOR et al.,

CO? CO? CO. CO? CO

Defendants

bh

tr

MEMORANDUM OPINION AND ORDER

Now before the Court are (1) the City of Dallas’s

Motion for Partial Summary Judgment, filed

January 15, 2008; (2) the Federal Defendants’ Cross-

Motion for Partial Summary Judgment Concerning

City of Dallas’s NEPA Claims, filed February 15,

2008; (3) Plaintiff Texas Water Development Board’s

Motion for Partial Summary Judgment, filed

January 15, 2008; (4) the Federal Defendants’ Cross-

Motion for Partial Summary Judgment Concerning

the Texas Water Development Board’s NEPA

Claims, filed February 15, 2008; (5) the Federal

Defendants’ Motion to Strike Plaintiffs’ Extra-Record

Materials, filed February 15, 2008; (6) the Texas

Conservation Alliance’s Motion for Leave to File

Amicus Brief, filed February 15, 2008; (7) Friends of

the Neches River’s and Houston Audobon Society's

Motion for Leave to File a Letter in Support of Texas

Conservation Alliance’s Amicus Brief, filed March 7,

2008; (8) Texas Water Conservation Association’s

Motion for Leave to File Amicus Brief in Support of

Plaintiffs’ Motions for Partial Summary Judgment,

filed April 7, 2008.

DISCUSSION

The City of Dallas (the “City”) and the Texas

Water Development Board (the “TWDB” or the

“State”)! (collectively, “Plaintiffs”) have filed these

' The TWDB is responsible for administering a comprehensive

statewide planning process intended to develop, manage, and

conserve the water resources of the State of Texas. See Tex

Water Code § 16.05l(a) (Vernon 2007). The State of Texas's

regional planning groups report to the TWDB. The City of

Dallas is Region C

23a

consolidated lawsuits against the Federal

Defendants? (“Defendants”) seeking reversal of the

United States Fish and Wildlife Service’s (““FWS’)

decision to establish the Neches River National

Wildhfe Refuge (“Refuge”) without preparing an

Environmental Impact Statement or an adequate

Environmental Assessment as required by the

National Environmental Policy Act.

On June 11, 2006, FWS designated a 25,281-acre

site within Anderson and Cherokee Counties, Texas

as the Neches River National Wildlife Refuge.

Plaintiffs want to use the same land on the Upper

Neches River for development of a reservoir to serve

the future water needs of Dallas residents and other

customers. This proposed reservoir is known as the

Fastrill Reservoir (“Reservoir”). Defendants’ decision

to establish the Refuge on this land prompted

Plaintiffs to take legal action. Plaintiffs allege that

FWS’s administrative decision to establish the

Refuge was plagued with procedural flaws and

statutory violations.

A. National Environmental Policy Act.

The National Environmental Policy Act of 1969

(“NEPA”) was established to ensure that federal

agencies carefully consider the environmental

impacts of their projects and make information

about those impacts available to the public. See 42

2 The Federal Defendants include Defendant H. Dale Hall, in

his official capacity as Director of the United States Fish and

Wildlife Service: Dick Kempthorne, in his official capacity as

the Secretary of the United States Department of the Interior;

3ernyamin N. ‘Tuggle, in his offieial capacity as the Regional

Mnrector of the Southwest Region (Region 2) of the United

States Fish and Wildlife Service; and the United States

Department of the Interior

24a

U.S.C. §§ 4321-70(d) (1982); Spiller v. White, 352

F.3d 235, 237 (5th Cir. 2003). NEPA requires federal

agencies to prepare a detailed Environmental

Impact Statement (“EIS”) for all “major federal

actions significantly affecting the quality of the

human environment.” 42 U.S.C. § 4332(C). NEPA

does not mandate particular results. It imposes

procedural requirements on federal agencies by

requiring them to take a “hard look” at the

environmental impact of their actions. Sabine River

Authority v. U.S. Dept of Inierior, 951 F.2d 669, 676

(5th Cir. 1992); see also Coliseum Square Ass’n., Inc.

v. Jackson, 465 F.3d 215, 223 (th Cir. 2006).

NEPA requires a federal agency undertaking an

action to determine whether its proposal requires an

EIS. To make this determination, an agency must

first prepare a more limited Environmental

Assessment (“EA”), which is a concise public

document that serves to briefly provide sufficient

evidence and analysis for determining whether to

prepare an EIS. See 40 C.F.R. §§ 1501.4(b),

1508.9(a). If the agency determines based on the EA

that no EIS is needed because the action would not

significantly affect the environment, 1t must issue a

“finding of no significant umpact” (“FONSI”), which

briefly presents the reasons why the proposed

agency action will not have a significant impact on

the human environment. See 40 C.F.R. §§ 1501.4(e),

1508.13. Otherwise, the agency must prepare an

RIS.

Plaintiffs contend that FWS violated its NEPA

obligation by failing to prepare an EIS or an

adequate EA with respect to its decision to establish

the Refuge. First, Plaintiffs contend that Defendants

were required to prepare an EIS because the Refuge

25a

decision was a “major federal action. . . significantly

affecting the quality of the human environment.”

Second, Plaintiffs contend the EA was inadequate

because FWS failed to provide adequate evidence

and analysis of the indirect impacts of the Refuge

designation and failed to consider alternative refuge

sites. Third, Plaintiffs allege that FWS failed to take

a “hard look” at the environmental consequences of

its decision, as illustrated by its decisions to rely on

an obsolete study and ignore current data. Fourth,

Plaintiffs accuse FWS of violating NEPA by failing

to cooperate with state and local officials.

B. Standard of Review.

An aggrieved party challenging an agency’s

decision that an EIS is not required or challenging

the adequacy of an EA may assert its claims in

federal court under the Administrative Procedures

Act. See 5 U.S.C. § 702. The court reviews these

agency decisions under the highly deferential

“arbitrary and capricious” standard. See Sabine

River, 951 F.2d at 677-78. When applying this

standard, a reviewing court shall “hold unlawful and

set aside agency action, findings, and conclusions

found to be arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A); Gulf Restoration Network v.

U.S. Dep’t of Transp., 452 F.3d 362, 368 (5th Cir.

2006).

This Court cannot reconsider anew the facts

leading to the establishment of the Refuge or weigh

the evidence supporting or contradicting FWS’s

decision. This Court may only evaluate whether

FWS’s decision had evidentiary support based on the

administrative record at the time the it was made.

26a

Whether or not the Court would have decided

similarly is immaterial, so long as the agency

considered all relevant factors and had evidence

supporting its decision. Thus, Plaintiffs’ burden in

this case is to show that Defendants had no evidence

to support the decision not to produce an EIS or

Defendants disregarded or ignored a factor required

in conducting the EA. See Brenham Cmty. Prot.

Ass'n uv. U.S. Dep’t of Agric., 893 F. Supp. 652, 657-58

(W.D. Tex. 1995). This Court “must look at the

decision not as a chemist, biologist, or statistician

that [it is] qualified neither by training nor

experience to be, but as a reviewing court exercising

[its] narrowly defined duty of holding agencies to

certain minimal standards of rationality.” Gulf

Restoration, 452 F.3d at 368 (internal quotation

marks omitted).

C. Amicus Bricfs.

Three organizations move for leave from the

Court to present their perspectives on these issues.

1. Texas Conservation Alliance.

The Texas Conservation Alliance, which is a

conservation organization that works to protect

native wildlife habitat and address environmental

problems, moves for leave to file an amicus brief

which it believes “will bring to this case another

perspective, one not shared by the parties to this

case.” (Mot. for Leave at 2.) The Court hereby

GRANTS the Texas Conservation Alliance’s motion

and instructs the Clerk’s Office to file its

accompanying amicus brief [Docket No. 106-3].

In its amicus brief, the Texas Conservation

Alliance reiterates FWS’s Sabine River arguments

that establishment of the Refuge maintains the

status quo and there is no causal relationship

between establishment of the Refuge and risk of

water shortage. (See infra.) The brief goes on to

describe the value of the Refuge as a habitat for

wildlife, for public recreation, and for preserving the

environment. The brief also gives chronological

descriptions of the Refuge planning and _ the

Reservoir planning.

2. Friends of the Neches River and Houston

Audobon Society’s Motion for Leave to

File a Letter in Support of Texas

Conservation Alliance’s Amicus Brief.

Friends of the Neches River is a conservation

organization that was formed for the specific purpose

of protecting the Neches River and its bottomland

forests. Houston Audobon Society is a non-profit

organization that promotes the conservation and

appreciation of bird and wildlife habitats. Both

organizations support establishment of the Refuge

and formally move to file a letter expressing their

support of the Texas Conservation Alliance’s bnef

and adopting its amicus brief as their own. The

Court hereby GRANTS the motion and instructs the

Clerk’s Office to file their accompanying letter of

support [Docket No. 111-2].

3. Texas Water Conservation Association’s

Motion for Leave to File Amicus Brief in

Support of Plaintiffs’ Motions for Partial

Summary Judgment.

The Texas Water Conservation Association

(“T'WCA”) is a statewide association of governmental!

and private entities that are active and interested in

28a

long-term provision of safe and adequate water

resources. TWCA maintains that its amicus brief

will provide another viewpoint not represented by

the parties in this case. The Court hereby GRANTS

the Texas Water Conservation Association’s motion

and instructs the Clerk’s Office to file its

accompanying amicus brief [Docket No. 123-2].

In its amicus brief, the TWCA maintains that

the Administrative Record (“Record”) reveals that

the NEPA process conducted by FWS was cynically

manipulated and unobjective. Despite its assurance

that “the purpose of [its] amicus brief is not to

repeat, rehash, or oppose the precise legal

arguments made by the parties,” the amicus brief

goes on to reiterate the arguments made by

Plaintiffs: (1) that FWS failed to take a hard look at

the environmental consequences of its action; (2)

that FWS was biased and manipulative in

conducting its NEPA analysis; and (3) that FWS did

not adequately consider alternatives. The amicus

brief also includes a chronological timeline of events.

(Amicus Br. at 3-7.)

D. Failure to Prepare an Environmental

Impact Statement (EIS).

Both Plaintiffs and Defendants move _ for

s.r mary judgment on the issue of whether FWS

was sequired to prepare an EIS in this case. The

City argues that (1) FWS’s own guidelines mandate

preparation of an EIS; (2) the Department of Interior

manual requires FWS to prepare an EIS; and (3)

NEPA requires preparation of an EIS because the

Refuge may have. significant effects on the

environment. The State argues that (1)

establishment of the Refuge was a “major federal

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action” and (2) establishment of the Refuge would

have significant regional socio-economic effects and

significant indirect effects. Defendants argue that

the Fifth Circuit’s decision in Sabine River Authority

v. United States Department of the Interior, 951 F.2d

669 (5th Cir. 1992) governs this case and mandates a

ruling in their favor.

1. The Sabine River Case.

In Sabine River — a case strikingly similar to

this one — the Fifth Circuit held that FWS was not

required to prepare an EIS with regard to its

decision to accept a conservation casement on 3800

acres of land in East Texas even though acquisition

of the easement prevented the plaintiff from

constructing a water reservoir on the same land.

Like this case, Sabine River involved an effort by

FWS to preserve land for the sake of protecting

wildlife habitats and populations. Like this case, the

agency action in Sabine River foreclosed the plaintiff

from establishing a reservoir on the same land. Like

this case, the Sabine River plaintiff had “given

serious consideration to usimg [the] land to

construct” a reservoir. Jd. at 673. Like this case, the

Sabine River plaintiffs “plans for the construction of

the reservoir, aimed at satisfying the anticipated

need for additional watcr over the next forty years

[in our case, 50 years], were still in the preliminary

stages: fit] 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” water that the reservoir would generate each

year. /d. Like this case, the Sabine River plaintiff

filed suit in federal court, alleging that the federal

agency's decision interfered with the plaintiff's long-

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term plan to construct a reservoir, which would

ensure that the state’s water supply would not be

placed in jeopardy in the calendar year 2030 (in this

case, 2060 [TWDB 562]). And lke this case, the

Sabine River plaintiff invoked NEPA and argued

that FWS’s action constituted a “major federal action

significantly affecting the quality of the human

environment,” thereby necessitating preparation of

an EIS. Id.

Defendants argue that Sabine River controls the

outcome of this case by presuming this case is

indistinguishable from it. Defendants maintain that

Plaintiffs’ argumerts seeking to distinguish this case

from Sabine River are foreclosed by Sabine River

which controls the outcome of this case. (Defs.’

Cross-Mot. for Summ. J. on State NEPA Claims at

16.) As the State points out, this argument is

circular: it assumes that Sabine River is not

distinguishable, then uses that precedent to foreclose

the argument that it is distinguishable. (State Resp.

at 3.)

Sabine River requires the Court to conduct an

analysis of the facts of each particular case, as

governed by the law set forth therein. In order for

the Court to determine whether the agency action at

issue rises to the level of a major federal action

significantly affecting the quality of the human

environment under Sabine River, the Court may look

at whether the agency action at issue (1) precludes

any development of the land, (2) changes the

character or function of the land, and (3) prohibits

any change in the status quo of the land. See Sabine

River, 951 F.2d at 680. To do this, the Court must

decipher from the Administrative Record the scope of

the agency action taken and whether the agency

.

sla

action causes a significant change to the land. The

Court must also analyze the socio-economic impact

of the Refuge decision on the Reservoir and on

regional and state water planning generally, and

whether the indirect effects of the Refuge are

significant within the meaning of NEPA. See id.

a. Direct Effect on Physical

Environment.

In Sabine River the district and circuit courts

held that FWS’s act of acquiring the easement “d[id]

not alter the environmental status quo; it does not

cause any change in the physical environment.

Indeed, the purpose of the [action] [wa]s to foreclose

any change in the physical environment of a

particular wetland site.” Sabine Hiver, 951 F.2d at

679 (quoting Sabine River, 745 F. Supp. 388, 394

(E.D. Tex. 1990).). The courts also held there was no

causal connection between the federal agency action

and the alleged change to the physical environment.

See Sabine River, 745 F. Supp. at 394-95; Sabine

River, 951 F.2d at 680. The Fifth Circuit noted that

NEPA does not require a federal agency to prepare

an EIS in order to “leave nature alone.” Sabine

River, 951 F.2d at 679. “NEPA may require an EIS

whenever a reservoir is built, but NEPA does not

require preparation of an EIS whenever a reservoir

is not built.” Jd. The court reasoned that the agency

action “did not effectuate any change to the

environment which would otherwise trigger the need

to prepare an EIS.” Jd. The court concluded that an

agency action that “precludes any development of

the land whatsoever,” that dves not “change [ ] the

character or function of the land,” and that “by its

terms prohibits any change in the status quo” does

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not amount to a “major Federal action[] significantiy

affecting the quality of the human environment.” /d.

at 679-80 (quoting 42 U.S.C. § 4332(2)(C) (alteration

in Sabine River).

In this case, Defendants characterize the agency

action as the “establishment of an acquisition

boundary for a refuge,” which they argue is

analogous to Sabine River’s acquisition of the

conservation easement because it does not alter the

status quo of the land. (Defs.’ Mot. for Summ. J. on

State NEPA Claims at 18; AR 1963 [FONSI].) The

City argues that FWS’s action is distinguishable

from the Sabine River action because the agency

action in this case was to establish a refuge and

establishment of an actual refuge “normally

require[s] the preparation of an EIS.”” Sabine River,

745 F. Supp. at 400 (quoting Dep’t of Interior

Manual, 516 DM 6, App. 1, 1.3A(1)). This case is

arguably distinguishable because the negative

easement in Sabine River prohibited any change in

the physical environment, whereas here the “land

use within the [R]lefuge boundaries will be in flux.”

(City Resp. at 2.~

According to the FONSI, FWS’s agency action

resulted in the “establish[ment] of an [sic] land

3'To support its position that this federal action will result in

change to the physical environment, the State points to the EA

which states that FWS “would strive to replace introduced

loblolly pine or slash pine species with native hardwoods or

evergreens” (State Mot. at. 17 (citing AR 1194).) This argument

lacks merit because this is a management issue, not an

establishment issue and management of the Refuge will be

addressed comprehensively in the Comprehensive Conservation

Plan and im accordance with NEPA Additionally, these

changes will add more of what is sought to be protected —

bottomland hardwoods

33a

acquisition boundary.” (AR 1963.) It allows for

“establishment of the Neches River National Wildlife

Refuge” which allows FWS to make land purchases

“in fee and easement interests from willing sellers

and/or donors, and in coordination with the affected

public.” (AK 1961.) The “national wildlife refuge will

only exist after an interest in land is acquired by the

United States within an approved boundary.” (AR

1963.) Eventually, FWS will prepare a_ formal

Comprehensive Conservation Plan (“CCP”) that will

provide detail about Refuge management, with input

from the public and in accordance with NEPA. (AR

1973-81.)

The fact that this case involves establishment of

a 25,28l-acre refuge, not a 3800-acre non-

development easement is immaterial. The fact that

establishment of the Refuge will prevent the land

from being sold, subdivided, or cleared and used for

a reservoir, pastures, tree farms, oil and gas drilling,

natural gas pipelines, and residences does not mean

that establishment of the Refuge alters the status

quo. (City Mot. at 23-32.) The status quo is the

condition of the land as it is now. Establishment of

the Refuge will not alter the condition of the land as

it is today — in fact, it will effect no change in the

status quo. Establishment of the Refuge boundary

will not result in a change to the physical

environment and in fact, preserves the land at

issue.‘

‘ The City argues this is its “only opportunity to challenge

FWS's NEPA analysis for establishment of the Refuge” and

objects to FWS’s explanation that FWS will be required in the

future to conduct NEPA analyses in conjunction with

environmental impacts that may occur due to management of

the Refuge. (City Reply at 6.) The Citys objection does not

34a

b. Indirect Effects on Environment.

Plaintiffs argue that FWS violated NEPA by

failing to address the Refuge’s indirect effects on

Dallas's water supply, the Dailas economy, and

Dallas and Texas’s future water planning. (City Mot.

at 39; State Mot. at 12, 14-15.) Defendants maintain

that NEPA does not require FWS to evaluate the

Refuge’s potential impact on the City’s future water

supply or water-planning process for two reasons: (1)

those impacts would not be the proximate result of

the agency action, and (2) they would be too remote

and speculative to determine. (Defs.’ Resp. to City

Mot. at 34.)

An agency must review the direct, indirect, and

cumulative impacts of the proposed action when

deciding whether or not to prepare an EIS.° See

generally 40 C.F.R. § 1508.9(b).6 NEPA does not

require an exhaustive, detailed discussion of impacts

in an EA. See Joan E. Drake, Paper, The NEPA

make the City’s case for an EIS any more persuasive and is

immaterial to the Court's decision

6 “Direct effects” are caused by the action and occur at the same

tume and place. “Indirect effects” are caused by the action and

are later in time or farther removed in distance but are still

reasonably foreseeable. “Cumulative impacts” result from the

incremental impact of the action when added to other past,

present, and reasonably foreseeable future actions. See 40

CFR. 88 1508.8(b), 1508.7.

640 CF ® 1508.90) (|An] Environmental Assessment shall

include “brtef discussions of the environmental impacts of

the proposed action.” (emphasis added); id. § 15088

(environmental impacts include direct and indirect effects of

the proposed action), id. § 1508.27 (inquiry into whether action

has “significant” effect must include cumulative impacts)

NEPA uses the terms “effects” and “impacts” interchangeably

See 40 C_\ELR. § 1508 8

35a

Process - What Do We Need To Do and When?, 2006

Rocky Mountain Mineral Law Found. Paper 3

(2006). An EA must show the agency considered

relevant factors and made a reasoned evaluation.

See Utah Shared Access Alliance v. U.S. Forest Serv,

288 F.3d 1205, 1213 (10th Cir. 2002). NEPA requires

agencies to focus on reasonably-foreseeable impacts

“rather than distorting the sum _ process’ by

overemphasizing highly speculative harms.”

Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 356 (1989). NEPA requires FWS to take

into account those effects that “are caused by the

action and are later in time or farther removed in

distance, but are still reasonably foreseeable.” City of

Shoreacres v. Waterworth, 420 F.3d 440, 452 (5th

Cir. 2005) Gnternal quotation marks omitted). “A

‘but for’ causal relationship is insufficient to make

an agency responsible for a particular effect under

NEPA and the relevant regulations.” /d. (internal

quotation marks omitted). “Rather, a _ plaintiff

mounting a NEPA challenge must establish that an

alleged effect will ensue as a ‘proximate cause,’ in

the sense meant by tort law, of the proposed agency

action.” Id.

Sabine River requires a court to evaluate

whether the agency action had an indirect adverse

impact on the environment, such as on the water

supply and planning, the local economy, or the

population. See Sabine River, 951 F.2d at 680. In

Sabine River, the court held that aside from the

absence of any change to the physical environment,

it doubted whether the adverse impact on water

quality and supply could be precisely attributed to

FWS's acquisition of the easement. See id. The court

believed any link between acquisition of the

36a

easement and adverse impact on water supply was

too unpredictable and speculative to be considered a

significant environmental impact. See id.

Plaintiffs argue FWS had much more

information about the effects of the Reservoir on the

City’s water supply than it did in Sabine River,

thereby rendering this Reservoir project non-

speculative. For example, in this case the Fastrill

Reservoir was listed as a planned reservoir in two

regional water plans, a potential construction date

has been set, the facility and unit costs are

calculated, and the economic consequences of not

adopting the proposed water management strategies

have been estimated. (State Resp. at 4-5.) Plaintiffs

also argue that this case is distinguishable from

Sabine River because the Sabine River reservoir was

not listed in the state water plan on which FWS

reasonably relied when conducting its EA. The State

argues that because the Fastrill Reservoir was listed

as a potential future reservoir site in two state water

plans, FWS was aware of the need for the Reservoir

and Plaintiffs’ plan to construct it.

Though the water plan in Sabine River did not

list the Sabine River reservoir as a_ planned

reservoir, FWS did review the Sabine River

Authority's Master Plan which contained its own

water supply projections to support the conclusion

that the reservoir at issue was necessary. See Sabine

River, 745 F. Supp. at 398. The district court found

that FWS “fully considered the available data on

future water supply needs’ of the relevant region. /d.

at 399. This is analogous to FWS having the two

Water Plans and corresponding data on future water

supply needs in this case

Plaintiffs further argue that this case is

37a

distinguishable from Sabine River because here,

Plaintiffs have a projected construction date for the

Reservoir and have calculated facility and unit costs.

Furthermore, Plaintiffs’ assert that the inability to

construct the Reservoir will have known and

significant impacts on the region’s water supply and

economy as set forth in the State’s 2006 Water Plan

for Region C.

The flaw in the Plaintiffs’ position is th..t these

adverse effects will not be caused by establishment

of the Refuge or Plaintiffs’ inability to develop the

Fastrili Reservoir. The drought conditions described

in the State’s 2006 Water for Texas Plan for Region

C presume no new water supplies being developed

over the next fifty years. (TWDB 280-83.) Plaintiffs

do not anticipate building the Reservoir until 2050

or tapping into the Reservoir until 2060 — long after

these alleged effects would be feit. (TWDB at 562.)

Additionally, there are many other factors that could

affect the water supply for the region that FWS

cannot control or foresee, for example, the City’s and

the State’s water planning processes, how Plaintiffs

choose to address the region’s future water supply

needs, from where the City purchases its water,

whether and to what extent the City adopts water

conservation measures, and whether and when the

City develops new sources of water. The Fifth Circuit

has noted that “it is doubtful that an environmental

effect may be considered as proximately caused by

[an agency action] if that effect is directly caused by

the action of another government entity over which

the [agency] has no control.” Shoreacres, 420 F.3d at

452. Establishment of the Refuge boundaries today

cannot be said to be the legal and proximate cause of

deficiencies in the City’s water supply fifty years

38a

from now. While it is reasonably foreseeable that

establishment of the Refuge will cause the Reservoir

to be thwarted, it is beyond FWS’s capability and

NEPA’s scope to require FWS to identify all possible

consequences that could be caused by the Reservoir

not being built. The Court finds that the effects of

FWS’s action upon the City’s and the State’s water

supplies are not within the scope of NEPA and can

not form the basis of a NEPA claim.

2. Department of Interior Guidelines,

The City argues that an EIS was required

pursuant to Department of Interior guidelines,

which mandate preparation of an EIS when a new

refuge system proposal conflicts with local land use

plans. (City Mot. at 4, 20.)

The Departmeni of Interior provides guidelines

for FWS to follow when implementing NEPA. See

NEPA Rev’d Implementing Procedures, 62 Fed. Ref.

2375 (Jan. 16, 1997)). These guidelines “provide

general guidance for NEPA compliance” for FWS

activities and lst those “major actions normally

requiring an environmental impact statement.” Id.

at 2376. The guidelines state that, “[mJajor proposals

establishing new refuge systems” “when determined

to be a major Federal action significantly affecting

the quality of the human environment, will normally

require the preparation of an EIS.” 7d. at 2382

(emphasis added). What the City fails to mention is

that establishment of a refuge requires an EIS only

when the action significantly affects the quality of

the human environment. Because the City has not

demonstrated that establishment of this Refuge will

significantly affect the human environment, no EIS

was required pursuant to the Department of Interior

39a

guidelines.

3. FWS Guidelines.

FWS has its own set of guidelines to help its staff

determine whether a particular agency action will

require preparation of an EIS. (City Mot. App. at

101-06.) FWS advises that certain criteria “may

trigger the preparation of an EIS,” “depending on the

severity and duration of [the] effects.” (City Mot.

App. at 102 (emphasis added).) Despite the

discretionary language of the guidelines, the City

alleges that in this case, the guidelines “compel|[] the

preparation of an SEIS.” (City Mot. at 18.)

Specifically, Plaintiffs argue that because the agency

action (1) “expos[es] existing or future generations to

increased safety or health hazards;” (2) “conflicts

with substantially proposed or adopted local,

regional, State, interstate, or Federal land use plans

or policies that may result in adverse environmental

effects;” and/or (3) has “adverse effects on municipal,

industrial, or agricultural water supply or quality; or

major consumptive use or other’ Jlong-term

commitment of water,’ FWS was required to conduct

an EIS. (City Mot. App. at 102-03.)

The Court is not persuaded by Plaintiffs’

arguments. The underpinning of the guidelines is a

showing of causation; the agency action must be

shown to cause adverse environmental effects. The

City has not established that establishment of the

Refuge will cause adverse effects to Dallas’s future

water supply. See, e.g., Sabine River, 951 F.2d at 680

(“[t}he inquiry in NEPA cases is whether the federal

action at issue is proximately related to a change in

the physical environment.”). It is too tenuous an

argument to say that establishment of the Refuge

40a

boundaries will be the proximate cause of hazardous

drought conditions or a shortage of water for future

Dallasites. The City has not established that the

Reservoir at this location is the only water source

available to meet Dallas’s future needs. Nor has the

City established with certainty that the Reservoir

would, in fact, be built; the Fastrill Reservoir was

not a substantially proposed or adopted land use

plan — planning was in its infancy — the feasibility

study had not yet been finalized and the City had

taken no concrete steps to construct the Reservoir,

such as official authorization, funding, permitting,

design studies or environmental studies. Cf. Sabine

River, 951 F.2d at 673 (finding reservoir project was

still in the preliminary stages when plaintiffs “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” water that

the reservoir would generate each year).’ Therefore,

the Court finds that the FWS guidelines did not

mandate preparation of an EIS in this case.

For all these reasons, the Court concludes that

? Plaintiffs characterization of their “planning” as “distinctly

more concrete’ than the Sabine River reservoir is not supported

by the record evidence. For example, the fact that

communication may have been initiated with officials who

would be involved in the process of obtaining permits for the

reservoir does not mean that the application process had begun

or that any permit had been obtained. In fact, initiation of

discussions 1s a far cry from actual acquisition of permits. (See

City Resp. at 5 (e1iting PWDBO595).) What the evidence

indicates is that virtually no real planning had been done

hetween 1961 and the time FWS announced its decision to

establish a refuge on the land. Even preliminary planning was

not initiated until 2005 — two years after FWS began taking

the necessary steps to establish the Refuge

Ala

FWS did not act arbitrarily and capniciously by

deciding not to issue an EIS in this case.

E. Adequacy of the Environmental

Assessment.

An EA is a “concise public document” that serves

to briefly provide sufficient evidence and analysis for

determining whether to prepare an EIS or a FONSI.

See 40 C.F.R. §1508.9. “An EA is ‘a rough cut, low-

budget environmental impact statement that is

designed to show whether ae 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.” La. Crawfish Producers Ass’n - W. v.

Rowan, 463 F.3d 352, 356 (th Cir. 2406) (quoting

Sabine River, 951 F.2d at 677).

An EFA must “include brief discussions of [1] the

need for the proposal, [2] alternatives as required by

section i102(2)(E), [3] the environmental impacts of

the proposed action and alternatives, and [4] a

listing of agencies and persons consulted.” 40 C.F.R.

§ 1508.9(b).

The thirty-eight page EA in this case evaluates

the “scope and dimensions of the proposed [refuge]

boundary.” (AR 1168.) The EFA lists three refuge

alternatives: (A) a “no action” alternative, (B) the

recommended 25,281l-acre configuration, and (C) a

smaller and narrower 15,294-acre configuration. (AR

1174-75.) The EA acknowledges that the Fastrill

Reservoir had been proposed for the Neches River

and that the City had contracted for a feasibility

study on its potential development. (AR 1178.) The

EA does nov include an alternative that discussed a

Refuge/Reservoir combination. The FA explains that

42a

FWS “considered the reservoir project speculative in

the short term, and not definite in scope and

purpose,” accordingly, FWS could not “formally

evaluate the combined or cumulative impacts or

details of how the two projects might interface while

not attenuating the mutual goals of each project.”

(AR 2971; see also AR 1185.) In discussing the “no

action” alternative, the EA recognizes that if the

Refuge is not established, the Reservoir “could

eventually be built.” (AR 1190, 1200.) In the other

two alternative discussions, the EA notes that

establishment of the Refuge would prevent

development of the Reservoir. (AR 1194, 1998.)

The City argues that the EA is deficient because

FWS failed to (1) assess a reasonable range of

alternatives; (2) analyze many of the indirect and

cumulative impacts; (3) use current information in

its analysis; (4) supplement the EA and FONSI in

light of new information and circumstances; (5)

consider the economic impacts on the city of Dallas:

and (6) coordinate and consult with State and local

agencies. FWS maintains it reasonably evaluated

each of these issues and appropriately issued a

finding of no significant impact.

1. Consideration of a Reasonable Range of

Alternatives.

NEPA mandates that the agency “study, develop,

and describe appropriate alternatives to

recommended courses of action in any proposal

which involves unresolved conflicts concerning

alternative uses of available resources.” 42 U.S.C. §

4332(2)(E). An EA must include a reasonable range

of alternatives, but NEPA does not require an

agency to discuss “all proposed alternatives, no

43a

matter what them ment.” See La. Crawfish

Producers, 463 F.3d at 356. “[T]he range of

alternatives that the [agency] must consider

decreases as the environmental impact of the

proposed action becomes less and less substantial.”

Id. at 357. “NEPA’s requirement with regard to an

agency's consideration of alternatives is subject to a

rule of reasonableness.” Davis Mountains Trans-

Pecos Heritage Ass’n v. U.S. Air Force, 249 F. Supp.

2d 763, 793 (N.D. Tex. 2003) (Cummings, J.). The

rule of reason applies to the range of alternatives

considered as well as the extent the EA must discuss

each alternative. Jd. There is no need for an agency

to analyze “the environmental consequences of

alternatives it has in good faith rejected as too

remote, speculative, or... impractical or ineffective.

See Fuel Safe Wash. v. Fed. Energy Regulatory

Comm'n, 389 F.3d 1313, 1323 (10th Cir. 2004)

(internal quotation marks omitted) (omission in

original). Alternatives that do not accomplish the

purpose of an action are not reasonable. See Davis

Mountains. 249 F.Supp.2d at 793. Where conflicting

evidence is before an agency, the agency and not the

court has the discretion to accept or reject from the

several sources of evidence. See Sabine River, 951

F.2d at 678.

Under the highly deferential standard of review

the Court must use, the Court may not substitute its

judgment for that of the agency, but must studious'y

review the record to ensure that the agency has

arrived at a reasoned judgment. See id. at 676.

44a

a. The Joint Refuge/Reservoir

Alternative.

The City argues that FWS acted arbitrarily and

capriciously by refusing to consider an alternative

that would include both the Refuge and the

Reservoir. FWS responds that it was not required to

evaluate a joint Refuge/Reservoir alternative

because such an alternative would have been

speculative. The EA concludes that because the

feasibility study had not yet been done and because

the Reservoir project was far beyond the planning

horizon for the Refuge proposal, it was too

speculative to determine how the two projects might

interface. (AR 1185, 1966.)

In Sabine River, FWS did consider in its EA the

alternative of establishing a refuge in conjunction

with the reservoir. See Sabine River, 745 F. Supp. at

399. FWS rejected that alternative because it would

not prevent destruction of the wetland habitat FWS

was trying to preserve. See id. FWS also concluded

that any area set aside for refuge purposes would be

of inferior quality. See id. This decision was

supported by a Texas Parks and Wildlife report

which suggested that wetland sites established in

conjunction with reservoir projects are of only

marginal value to the waterfowl populations. See id.

The Record establishes that Plaintiffs’ plans for

constructing the Reservoir were aimed at satisfying

an anticipated need for additional water in 2060.

The Reservoir would not even be constructed until

2050 and planning for its construction was in the

preliminary stages. Plaintiffs had not obtained any

of the necessary federal and state permits, had

secured no funding, and had not yet entered into any

45a

firm contracts for the water that the Reservoir would

generate each year. ‘I'he Court concludes that it was

not arbitrary and capricious for FWS to conclude

that a combined Refuge/Reservoir alternative would

be too speculative.

b. Alternate Refuge Site.

Plaintiffs also maintain that FWS violated

NEPA because it did not appropriately consider an

alternate site for the Refuge. (City Mot. at 35-37.) In

March 2006, FWS was presented with the draft

feasibility study which outlined some preliminary

alternate sites for the Refuge. (AR. 722-24.) On April

3, 2006, FWS Director Dale Hall met with the City

and the Upper Neches Regional Municipal Water

Authority (“‘UNRMWA”) in Washington, D.C. to

discuss co-existence of the Refuge and the Reservoir.

At this meeting, the Reservoir proponents gave a

presentation about the Reservoir and the City’s

water needs and requested that Director Hall not

approve the FONSI until both Parties have an

opportunity to work together to identify an alternate

refuge site of equal or greater value for preservation

of bottomland hardwood habitat. (AR 2077, 2128.)

Director Hall agreed to postpone his decision until

June 1, 2006. (AR 2067, 2076, 2154, 2219.) In the

interim, the parties established a

“technical/scientific team” that was comprised of an

FWS representative to work with the City, its

consultant HDR Engineering, Inc. (“HDR”), the

UNRMWA, and the State of Texas Parks and

Wildlife Department. Throughout May 2006, FWS

was kept informed of the progress of the

technical/scientific team. FWS was involved in phone

calls, emails and meetings with members of the

46a

technical/scientific team where the issue of

alternative sites for the Refuge was discussed. (AR

2062-64, 2067, 2075-80, 2175-77, 2531-33, 2579.)

According to the Texas Parks and Wildlife

Department, the technical/scientific team spent

considerable time mapping, researching, and

discussing alternate sites, yet as of May 31, 2006,

“an alternative site that is equal to or bigger and/or

better than the North Neches site has not yet been

identified.” (AR 2051-52, TWDB 1028-29.) The

alternate refuge sites had problems that made them

undesirable: i.e., forest conditions, conflicts with

previously identified reservoir sites, and land

ownership issues. (AR 2052.) “At this point in time,

there are too many unknowns regarding the

appropriateness of the alternative sites. Criteria

such as current forest condition and willingness of

owners to sell have not been identified.” (AR 2051;

see AR 2052, 2531.) On June 7, 2006, HDR sent an

email to FWS outlining the progress made to date,

but failing to present an alternative site that is

equal to or better than the Refuge site. (AR 2054-

57.) FWS reviewed the email and noted it did not

provide a viable alternative site. (AR 2054.) FWS

continued to meet with the technical/scientafic team

after the FONSI had been signed and the Refuge

boundaries had been established. (TWDB 982.) Even

assuming there were conflicting alternate Refuge

sites available, FWS had discretionary authority to

establish the Refuge in its current location.

In November 2007, HDR issued a final feasibility

study report (“2007 Report”) that analyzed four

potential alternative preservation sites in detail. In

its 2007 Report, HDR detailed its research findings

of land ownership, conflicts with reservoir sites,

47a

preliminary hydrologic comparisons of the proposed

Refuge and alternate sites, and land cover

summaries with information on _ bottomland

hardwood acreage. (2007 Report at 2-1.) According to

Plaintiffs, much of the underlying data for the report

was available to FWS before the Refuge decision was

made. (State Mot. at 24.) The 2007 Report concludes

that the Middle Neches River and Neches River

South are of “apparent value greater than or equal to

that of the” original Refuge site. (2007 Report at 4-1,

4-2.) The 2007 Report also states “there are

opportunities for managed co-existence of Fastrill

Reservoir and a significant portion of the planned

{Refuge} for the multiple objectives of water supply

and wildlife habitat management and preservation.”

(2007 Report at 4-1.)8 Plaintiffs claim this evidence

and these conclusions were available to FWS prior to

May 31, 2006, and that these sites were better than

the site chosen by FWS.

In Sabine River, the court stated that “where

conflicting evidence is before the agency, the agency

8 FWS objects to and moves to strike as extra-record evidence

created after the final agency decision was made the Affidavit

of William F. Mullican II] (TWDB Ex. 1); Affidavit of Samuel K.

Vaugh (TWDB Ex. 2); Affidavit of Samuel K. Vaugh (City App.

at 1-7), Fastrill Reservoir & Bottomland Hardwood

Preservation Opportunities, HDR Engineering, Inc., Nov. 2007

(“2007 Report’) (TWDB Ex. 3.). The Federal Defendants also

obect to Plaintiffs using their Complaints as summary

judgment evidence, ‘The Court DENIES FW3's motion to strike

to the extent the data contained in the Vaugh affidavits and

the 2007 Report is used for determining whether FWS took the

requisite hard look at the environmental consequences of its

dezision. Much of the data contained therein was available to

FWS or was in its possession at the time the agency decision

was made With respect to the Mullican Affidavit and the

verified Complaints, the motion to strike is DENIED as MOOT

18a

and not the reviewing court has the discretion to

accept or reject from the several sources of evidence.”

Sabine River, 951 F.2d at 678. The court may only

review its decision for arbitrariness and

capriciousness.,

FWS had before it its own evaluation of the

current site and its value for Refuge purposes.

Using its own expertise in evaluating the properties

of the land, FWS’s Concept Plan identified the

Neches River Refuge as “Priority 1" for conservation

as far back as 1985. (AR 1169.) FWS staff conducted

a site visit in January 2004 to evaluate the

composition and condition of the land for refuge

purposes. (AR 554-58.) It had evidence that no other

proposed site was equal to the current site and the

alternate refuge sites may have had problems that

made them undesirable: t.e., forest conditions,

conflicts with previously identified reservoir sites,

and land ownership issues. (AR 2051-53.) The fact

that the area’s bottomland hardwood cover is

diminishing does not mean FWS was arbitrary in

choosing the area for a refuge. (See AR 554

acknowledging deterioration of — bottomland

hardwoods in the region). In fact, it may be that.

FWS wants to preserve the bottomland hardwood

cover that remains. FWS was entitled to establish

the Refuge boundaries in the location it chose

instead of in the areas proposed in the 2007 Report.

The fact that FWS was faced with conflicting

evidence does not establish that FWS acted

arbitrarily or capriciously in choosing these

particular Refuge boundaries over others.

Although FWS did not analyze the alternative of

establishing a refuge in conjunction with the

reservoir in the EA, the Record evidence establishes

49a

that FWS did consider and reject that alternative

because the Reservoir would destroy the habitat

FWS was trying to preserve. See Sabine River, 745

F.2d at 399. The Record contains sufficient evidence

to support FWS’s conclusion that the Reservoir

project was speculative and inconsistent with FWS’s

objective. FWS did not act arbitranly = and

capriciously given the available data at the time of

the decision and in light of the fact that

establishment of the Refuge will have no significant

impact on the environment. Given the deferential

standard of review, the Court concludes that the

FWS adequately considered alternatives and was not

arbitrary or capricious in its decision to adopt

Alternative B.

3. Use of Current Information in

Environmental Assessment.

The City argues that FWS violated NEPA by

failing to use “current information” in its KA, instead

using a twenty-year-old analysis of the bottomland

nabitat. (City Mot. at 40-44; AR 19.)° The City

argues the KA did not use current data and accurate

scientific analysis in its discussions of the Refuge’s

alternatives or the Refuge’s impacts on wildlife,

vegetation, the environment, air, and socioeconomic

conditions. (AR 1178-82, 1184, 2987.) FWS does not

dispute that it relied on “certain older studies” and

responds that its reliance on those older studies does

not invalidate the EA. (Defs.’ Resp. to City Mot. at

38.)

In this NEPA challenge, Plaintiffs must show

’ The twenty-vear-old study to which the City refers is a 1985

FWS report entitled “Land Protection Plan for Bottomland

Llardwoods, Category 3, Texas and Oklahoma

50a

that FWS’s use of old data likely led to a flawed

assessment of environmental consequences and that

FWS’s use of such data resulted in a decision that

was arbitrary and capricious. The City contends that

FWS’s use of this outdated data caused FWS to

overlook the fact that the area’s bottomland

hardwood cover has diminished from seventy-one

percent to thirty-one percent since 1985. (2007

Report at 3-4.) The City presumes that the presence

of waterfowl and other migratory birds would have

changed in light of the diminishment of bottomland

hardwoods habitat. (City Reply at 18.) FWS’s own

2004 site visit no.ed that a portion of the land “had

been partially harvested since we looked at the site

in the late 1980s.” (AR 554.)

It is important to remember that “the ultimate

purpose of the EA is to lead 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 [environmental]

impact.” Spiller, 352 F.3d at 238 (internal quotation

marks omitted). Only when outdated information

affects an agency's ability to properly assess the

environmental impacts of its action does the NEPA

analysis come into question. Thus, the Court must

consider whether the data used by FWS was so

deficient as to lead to a flawed assessment of the

environmental consequences of the Refuge and an

inaccurate evaluation of = alternatives. The

challenging party has the burden of making this

showing.

The Record evidences that FWS met with the

City, the UNRMWA, and the State of Texas Parks

and Wildlife Department to discuss the Refuge

proposal and plans for a Reservoir. The Record

Dla

evidences that FWS evaluated the new information

provided during those meetings, including the draft

Feasibility Study, and decided to move forward with

its approval of the Refuge proposal. (AR 2054-55,

2067.)

The City’s briefing is replete with conclusions

and speculation, but is lacking in detailed discussion

of particular ways the new data and conclusions

affect the ultimate environmental assessment.

Despite spending considerable time mapping,

researching and discussing alternate sites for the

Refuge, Plaintiffs were unable to identify an area

that was equal to or better than the Refuge site as of

June 1, 2006. (AR 2052.) The City has not shown

that more current data would have revealed the

existence of a significant environmental impact or a

different set of alternatives. Even if the alternatives

set forth in the 2007 Report were considered by

FWS, as stated supra, FWS had the discretion to

decide between the conflicting evidence which it

would accept. See Sabine River, 951 F.2d at 678. The

City’s repeated arguments that FWS “should have”

done this, or “could have” done that is not enough to

show FWS acted arbitrarily and capriciously, given

the deferential standard the Court must apply.

4. Evaluation cf Economic Impacts on the

City of Dallas.

The City argues that FWS acted arbitrarily and

capriciously by failing to adequately consider the

economic impacts of the Refuge on the City of Dallas.

(City Mot. at 45-46.) The City reasons “there is

nothing speculative about the fact that if the refuge

is established it precludes the planned reservoir.”

(City Reply at 23.)

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52a

While this is true, what is speculative is the

hkelihood that the Reservoir would have been

constructed at all, and the effect that not having the

Reservoir at this location would have on the City’s

water supply. ‘he speculative nature of these issues

has been discussed at length, supra. FWS was not

arbitrary or capricious in. concluding that

establishment of the Refuge’s boundaries would not

have a directly ascertainable economic impact on the

City or the City’s water supply.

5. Coordination with State and Local

Agencies.

The City argues that FWS acted arbitrarily and

capriciously by “ignoring state and local concerns”

and by misleading state and local agencies into

believing they were engaging in_ cooperative

consultation with FWS. (City Mot. at 46.) The City

also argues FWS was under a mandatory obligation

to coordinate with affected state and _ local

governments. Plaintiffs believe FWS did not conduct

its NEPA analysis in good faith; that its apparent

willingness to cooperate and consider alternate sites

was a sham because FWS had prejudged the issue

and was unwilling to consider any other options.

(State Mot. at 27-28; City Mot. at 13-15.) The State

points to two statements made by FWS Director

Dale Hall. (State Mot. at 27-28.) In one email dated

February 2005, then-Regional Director Hall sent an

email to his staff giving them a “heads up” about the

proposed Reservoir in which he wrote, “it just doesn’t

make sense to flood out highly productive wetlands

like these for a water project that has found no

justified need.” (AR 574.) Hall’s second email, sent a

month later, says “the smart way to approach this is

ee om, i an ; OPT te EP on & we . "+ dae |

58a

not to be seen as saying ‘no way, but rather

emphasizing the difficulty in replacing such an

important, and limited bottomland hardwood

resource and that we simply don’t see how that could

be done through mitigation.” (AR 459.) The City also

cites an email from FWS’s Tom Baca in March 2005

that states “even if the full [City] council votes in

favor of a study for Fastrill, by the time they get a

study contracted and completed, we will hopefully

have received the director’s approval. (Trying to be

an optimist :).” (AR 1768.) The City also quotes a

portion of an email from Tom Baca who wrote in

April 2006 that “to agree to some compromise

mitigation proposal is not only biologically

unsupportable, it is unconscionable in the realm of

responsibility to the local citizenry. Just between us,

a total betrayal.” (AR 2191.)

These emails do not vitiate the good faith or

reasonableness of the NEPA analysis. According to

the Record, Tom Baca was not involved in the

meetings with the reservoir proponents and was not

the final decision-maker with authority to approve

the Refuge boundaries. In fact, in an April 2006

email to Tom Baca, another FWS official wrote that

“Jim Neal [is] on the team” to review the Reservoir

proponents’ proposal and he “will certainly look at

their proposal very objectively.” (AR 2191.) Then-

Regional Director Dale Hall’s email excerpts show

that Hal!, as an FWS official, was working to

promote establishment of the Refuge which was

his job to do. The Record does not establish that

FWS was participating in a scheme to feign

cooperation in an attempt to appear in compliance

with NEPA. Director Hall was a participant in phone

calls and meetings with the Reservoir proponents

54a

at the request of Plaintiffs and after the EA had

been drafted — to give them an opportunity to have

their collective voice heard on the Refuge/Reservoir

issue. FWS reviewed the materials and heard the

arguments. FWS representatives traveled to attend

meetings about alternative sites after the FONSI

and EA were issued. Though there is evidence that

FWS was very committed to this Refuge project, the

evidence does not establish that the agency avoided

conducting a proper NEPA analysis.

Plaintiffs also argue that FWS was _ not

cooperative because Director Flall’s June 1, 2006

deadline was arbitrary. They intimate that Director

Hall unreasonably hurried the scientific/technical

team in their task of identifying a viable alternate

refuge site. Plaintiffs argue that FWS unreasonably

placed the onus cf identifying an alternate site onto

the Reservoir proponents.!°

FWS officially introduced its proposal for the

Refuge to the public in June 2004. This was followed

by the scoping phase, during which FWS identified

0 The Citys conclusory statement that the FWS

“manufactured an arbitrary twenty-year planning horizon to

avoid consideration of the reservoir in its alternatives analysis”

is unsupported by the Record. (City Mot. at 36.) There is no

evidence that using a twenty-year window for planning

purposes is manufactured or arbitrary; nor is there evidence

that FWS used that time frame to avoid consideration of the

reservoir in its alternatives analysis. The State argues there is

no basis in law or policy for FWS's

This text is long and has been trimmed here. Open the source document for the complete record.