# Petition for Writ of Certiorari — City of Dallas v. Gould > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0625%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 559 U.S. 935 ## Text 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. ............... ] Pe ee Bee NE oikiencvicinecssvsctevaenarsseckevesienan il TA CAA a pss stan vasvsarcesnsncsiesssecnocmeenenn iii TARRee GO BART COIR LEM oseccdnesncsscccsevescctncteerasinens v CRIP ee MIT o oicn cis cnccecsavevncsesessassenpasabhccunpsosnnser 1 JURISDICTION .......... eRe NMRA NN, oP Ad Ker 8. 1 STATUTORY AND REGULATORY PR Vrs LEW VUE VED veneccsesncvessscevsssincocsosssevessves 1 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 tap OG eae k WAN A 9 Pon) FAN ah Aerie bt 26 1V C. The Fifth Circuit’s Approval Of FWS’s Outdated Data Conflicts With Decisions By Other Circuits....................... 29 ITE 2,., 5 ares caccayoncesesdobin ay tans taesccoianseaGartaaa ae 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 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 29a 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- 30a 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 32a 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.) “ae - Ry _ “ YOY S-Di gps ~w08 ~ ed ae" = ‘ *, _ 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 twenty-year planning horizon for its Refuge. (State Mot. at 13-14.) The State notes that the Refuge is designed to last. “essentially forever.” (State Mot. at 13.) Yet FWS must set some kind of time frame for its evaluations; it cannot have an interminable planning period. Plaintiffs have not estabhshed that FWSs_ twenty-year planning period ts arbitrary and capricious qn the important issues to be analyzed in the EA. After conducting public meetings about the proposal, the EKA was drafted in March 2005. The EA and FONSI were signed by Director Dale Hall in June 2006. It bears mentioning that during this time, the City worked to apply political pressure on FWS through a letter-writing campaign and by having local and state governmental bodies pass resolutions. (AR 1852-93, 1899-1900.) The City does not appear to have spent its time and resources during this period researching the feasibility of a joint Refuge/Reservoir project, an alternate refuge site, or an alternate reservoir site. There is no evidence in the Record and no mention in the briefing of any willingness or effort on the City’s part to find an alternate reservoir site. Had Plaintiffs been working diligently on any of these objectives from June 2004 through April 2006, their request for more time might seem reasonable. But to complain that more time is needed to conduct research that could have and should have been done earlier seems disingenuous. Long after the scoping period had expired, the EA was drafted, and the public hearings concluded did Plaintiffs ask for more time to conduct their own research. After waiting nearly two years, FWS gave Plaintiffs an additional two months. It ended up taking Plaintiffs another year and five months to collect and analyze the data. Plaintiffs implicitly argue that FWS should have waited another year and five months after the EA was signed for the remainder of the data to be collected and analyzed before making its decision to establish the Refuge boundarnes. NEPA does not require an agency to delay a final agency decision indefinitely while others work to develop § an alternative that will meet everyone's needs. Nor does hha NEPA require an agency to spend an unreasonable amount of time searching for an alternative. NEPA does not mandate inter-agency consultation before a draft EA is prepared. Although the applicable regulations do not address the timing of inter-agency consultation in the preparation of an EA, they do provide that after preparing a draft EIS and before preparing a final EIS, the agency shall obtain the comments of other federal agencies and request the comments of appropriate state and local agencies. See 40 C.F.R. § 1503.1(a)(1), (2). The regulations further provide that an agency shall respond to such comments. See itd. at § 1503.4(a). There is nothing in NEPA or the applicable regulations to suggest that the timing of consultations should be any different when an agency prepares a draft EA as opposed to a draft EIS. FWS officially introduced its proposal for the Refuge to the public in June 2004. (AR 1971.) This phase, known as the “scoping” phase, was designed to assist FWS in identifying the “important issues to be analyzed in the environmental assessment for potential impacts of the proposal.” (/d.) Before the proposal went public, elected officials including U.S. Senators, U.S. Congressional representatives, State Senators, State Representatives, and County Judges were notified of the proposal by letter. Ud.) FWS notified the affected landowners of the proposal by letter in July 2004. Ud.) FWS held two “scoping workshops” in July 2004 to provide information, answer questions, and elicit affected landowners’ issues and concerns about the proposed Refuge. (/d.) FWS also notified the Texas Parks and Wildlife Department, the two County Farm Bureau — mm — Mla _ An om Me Me im om Ma Me Ad aA o Mat mnt, in presidents, and the Texas State Railroad. (AR 1971.) FWS conducted a presentation for the East Texas Regional Water Planning Group in October 2004. (AR 1971.) After the EA was drafted in March 2005, it was publicly circulated to public officials; affected federal, state and local agencies; conservation organizations; academic. institutions; affected landowners; and others expressing interest in the Refuge. (AR 1204, 1999.) These documents underwent public review from March 1, 2005 to May 31, 2005 and public hearings were held on May 10 and 11, 2005. (AR 1999.) A Fiscal Impact Analysis was conducted and distributed to the public. (AR 1972.) Both the City and the State were invited to voice their concerns and meet with FWS during that comment period (AR 567, 816). During the comment period, FWS recorded and responded to 1693 written comments, many of which concerned the future of the Reservoir. (AR 1999- 2028.) FWS received and responded to dozens of letters fiom state, federal, and local officials about the Refuge and the Reservoir. (AR 1337, 1344-45, 1358-59, 1366-67.) After FWS’s then-Regional Director Dale Hall approved the EA and issued the FONSI in July 2005, City and State officials asked FWS to delay its final decision and to meet with its representatives. (AR 1854, 1859-60.) FWS accommodated these requests, and on April 3, Apml 20 and May 10, 2006 long after the comment period had passed — the then-Director Hall met with City and State Reservoir proponents about the future of the Refuge and the Reservoir. (TWDB 557-74; AR 2175-77, 2531-33, 2579.) The attendees at the meetings 58a included representatives of the City, HDR, the UNRWA, the State, and FWS. The Record demonstrates that FWS considered and responded to comments raised by other governmental agencies, including Plaintiffs, concerning the future of the Reservoir. The Record indicates that FWS took into account Plaintiffs’ concerns before making its final decision and involved other government agencies before preparing its EA. (AR 1299, 1306-11); See 40 C.F.R. § 1501.4(b). That FWS did not agree with the objections raised by the City and the State and others does not undermine the adequacy of FWS'’s NEPA review. The record reveals that FWS adequately considered that Plaintiffs wanted to use this land for a Reservoir, but FWS nevertheless chose to establish the Refuge boundaries in the area. A review of the claims and the record indicate that Plaintiffs’ disagreement with FWS is more akin to a political dispute over policy choices than a legal dispute over compliance with the procedural requirements of NEPA. “Neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.” Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 777 (1983). To permit Plaintiffs to use the provisions of NEPA to voice their policy objections to I"WS's actions and to hinder FWS’s attempts to fulfill its mandate from Congress would be contrary to the purposes of NEPA. 59a CONCLUSION After careful consideration of the briefing and applicable law, the Court hereby DENIES the City of Dallas’s Motion for Partial Summary Judgment and GRANTS the Federal Defendants’ Cross-Motion for Partial Summary Judgment Concerning City of Dallas’s NEPA Claims. The Court hereby DENIES the Texas Water Development Board’s Motion for Partial Summary Judgment and GRANTS the Federal Defendants’ Cross-Motion for Partial Summary Judgment Concerning the Texas Water Development Board’s NEPA Claims. The Court DENIES in PART and DENIES as MOOT in PART the Federal Defendants’ Motion to Strike Plaintiffs’ Extra-Record Materials. The Court GRANTS the Texas Conservation Alliance’s Motion for Leave to File Amicus Brief and the Amicus Brief. The Court GRANTS Friends of the Neches River’s and Houston Audobon Socicty’s Motion for Leave to File a Letter in Support of Texas Conservation Alliance’s Amicus Brief. The Court GRANTS Texas Water Conservation Association’s Motion for Leave to File Amicus Brief in Support of Plaintiffs’ Motions for Partial Summary Judgment. The Clerk’s Office is hereby instructed to file Docket Numbers 106-3, 111- 2 and 123-1 in accordance with this Order. It is SO ORDERED, this 30th day of June 2008. /s/ Jorge A. Solis JORGE A. SOLIS UNITED STATES DISTRICT COURT JUDGE 60a Filed July 28, 2008 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION CITY OF DALLAS, TEXAS, Plaintiff, v. H. DALE HALL et al., CIVIL ACTION NO. 3:07-C V-0060-P Defendants. Consolidated with: THE TEXAS WATER DEVELOPMENT BOARD, CIVIL ACTION NO. Plaintiff, 3:07-CV-0213-P i THE UNITED STATES DEPARTMENT OF THE INTERIOR et al., LO? CO? CO? CO? (OR? CO? CO? 6? (OR? C2 62 6G? (CO? (COR CO) (OR LO? C2 COR CO? O22 KN Defendants. Hla ORDER Now before the Court is Plaintiffs’ Emergency Motion for Injunction Pending Appeal or, in the Alternative, Motion for Temporary Restraining Order and Preliminary Injunction, filed July 1, 2008. In their motion, Plaintiffs the City of Dallas (“City”) and the Texas Water Development Board (“State”) (collectively, “Plaintiffs”) argue that injunctive relief is necessary pending appeal of this Court’s partial summary judgment ruling to prevent the U.S. Fish and Wildlife Service (“FWS”) from accepting a transfer of land into the Neches River National Wildlife Refuge (“Refuge”) because such a transfer would irreparably harm Plaintiffs. 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. Plaintiffs filed this legal action against the Federal Defendants! (“Defendants”) seeking reversal of FWS’s decision to establish the Refuge without preparing an Environmental Impact Statement (“EIS”) or an adequate Environmental | 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; Benjamin N. Tuggle, in his official capacity as the Regional Director of the Southwest Region (Region 2) of the United States Fish and Wildhfe Service; and the United States Department of the Interior 62a Assessment (“EA”) as required by the National Environmental Policy Act. On June 30, 2008, this Court issued an order granting partial summary judgment in favor of the Federal Defendants (“Defendants”) and found that FWS was not required to prepare an EIS and that its EA was adequate. Rule 62(c) of the Federal Rules of Civil Procedure authorizes district courts to suspend, modify, restore or grant an injunction pending appeal. See Fed. R. Civ. P. 62(c). The purpose of an injunction pending appeal is to maintain the status quo of the parties and ensure the effectiveness of the eventual judgment. See Coastal Corp. v. Tex. Eastern Corp., 869 F.2d 817, 819 (5th Cir. 1989). The status quo in this case is memorialized by a standstill agreement the Parties have been complying with since early in this litigation. In making a determination about whether to grant injunctive relief pending appeal, courts must consider whether the movant has made a showing that (1) it is likely to succeed on the merits on appeal; (2) it is likely to suffer irreparable injury if the stay is denied; (3) the non-movant will not be substantially harmed by the granting of a stay or injunction; and (4) the granting of an injunction will serve the public interest. See Drummond v. Fulton Co. Dep’t of Family and Children’s Serus., 532 F.2d 1001, 1002 (5th Cir. 1976). The Fifth Crreuit has held that in cases where a serious legal question is presented, the court may use an equitable approach and enter an injunction even if the movant has not shown a high likelihood of success on the merits. See Estelle v. Ruiz, 650 F.2d 555, 565 (5th Cir. 1981). “[T]he movant need only present a substantial case on the merits when a serious legal question is 63a involved and when the balance of the equities weighs heavily in favor of granting the stay.” Jd. The Fifth Circuit recognized that “if a movant were required in every case to establish that the appeal would probably be successful, the Rule would not require as it does a prior presentation to the district judge whose order is being appealed. That judge has already decided the merits of the legal issue. The stay procedure .. . affords interim relief where relative harm and the uncertainty of final disposition justify it.” Jd. at 565-66. Defendants contend that the Fifth Circuit's less- stringent Estelle standard for granting an injunction pending appeal was rejected by the United States Supreme Court earlier this year and that the traditional “likelihood of success on the merits” standard applies to this case. See Munaf v. Geren, U.S. — 128 S.Ct. 2207, 2210 (2008). Defendants argue that the injunction should not be issued because Plaintiffs have not established a likelihood of succeeding on the merits or irreparable harm and because Defendants will be harmed by entry of an injunction. In Munaf, Plaintiff Omar was an American citizen who was accused of committing crimes while traveling in Iraq. He was captured and placed in custody by military forces operating as part of a multi-national coalition force, under the command of U.S. military officers. His family filed a habeas petition on his behalf in federal district court in the United States. When Omar’s criminal case was referred to the Lraqi criminal court system, Omar's attorney sought and obtained a_ preliminary injunction from the United States District Court barring Omar’s transfer from United States custody 64a to Iraqi custody. The Supreme Court found that the district court erred by failing to analyze whether Omar had established that his habeas petition was likely to succeed on the merits. The Supreme Court held that the district court's finding that the jurisdictional issues in the case were “serious, substantial, difficult, and doubtful” was insufficient to warrant injunctive relief. Jd. at 2218-19. Unlike this case and the cases governed by Estelle v. Ruiz, Munaf does not involve a preliminary injunction pending appeal.2 Therefore, whereas the traditional preliminary injunction standard applied in Munaf, the Court in this case may enter an injunction if Plaintiffs can meet the less-stringent Estelle standard. Under Estelle and its progeny, Plaintiffs must show they will probably succeed on the merits in their appeal of this Court’s order or, if a serious legal question is involved, that they have presented a substantial case on the merits and that the balance of equities weighs heavily in favor of granting a stay. Plaintiffs argue correctly that the de novo appellate issue of whether FWS complied with NEPA will depend on the Fifth Circuit's interpretation and application of Sabine River Authority v. U.S. Department of the Interior, 951 r.2d 669 (5th Cir. 1992). Defendants argued to this Court that Sabine River controlled the outcome of this case because it held as a matter of law that this type of EA was adequate under this set of circumstances. FWS believes it was not required to The Nichols case cited by Defendants ts distinguishable from this case and Estelle for the same reason(s). See Nichols Alcatel USA, Inc, Fe38d -, No O7-40477, 2008 WL 2469407 th Cir. Jun. 20, 2008) 6aa consider or discuss certain direct or indirect effects of the Refuge on the region in light of the speculative nature of the Reservoir and the holding in Sabine River. In its partial summary judgment order, this Court held that Sabine River does control the outcome of this case as a matter of law, but provides guiding principles under which FWS and the courts must analyze the facts of each particular case. After engaging in its analysis, this Court held, inter alia, that FWS did not act arbitrarily and capriciously in its consideration of alternatives or in its ultimate conclusion that the Reservoir was speculative. On appeal, the Fifth Circuit will have an opportunity to decide, inter alia, whether NEPA requires the EA to analyze and discuss the indirect effects of the Refuge on the region’s water supply and on its economy in making its determination that the Reservoir was speculative. The Court finds this to be a serious legal issue that may affect how this and other agencies conduct future Environmental Assessments under NEPA. Plaintiffs have presented a substantial case on the merits, as evidenced by the Court’s orders at both the motion to dismiss and partial summary judgment stages. Ilaving satisfied the first prong, the Court must determine whether Plaintiffs are lkely to suffer irreparable injury if the injunction is denied. The Record indicates that FWS believes that once it acquires an interest in property within the boundaries of the Refuge, the federal land cannot be subjugated by any local or state project and cannot be divested from the Refuge except through an act of Congress. Thus, allowing FWS to acquire any land within the Refuge boundaries could possibly render Plaintiffs’ claims moot, which constitutes irreparable 66a harm. Additionally, the Court does not believe Defendants will suffer substantial harm by the granting of an injunction. Maintaining the status quo of the land while bringing this case to a conciusion will not harm Defendants or the land they seek to preserve. Finally, granting this injunction will serve the public interest — it will ensure the status quo is maintained so the legal system can resolve this important dispute about the future of this valuable land. The Court finds that the balance of equities weighs heavily in favor of sranting an injunction an. therefore, Plaintiffs’ motion for injunction pending appeal is hereby GRANTED. The parties are to abide by the terms of the standstill agreement currently in place until further order of this court or of the Fifth Circuit Court of Appeals. Itis SO ORDERED, this 28th day of July 2068. /s/ Jorge A. Solis JORGE A. SOLIS UNITED STATES DISTRICT COURT JUDGE 67a NATIONAL ENVIRONMENTAL POLICY ACT 42 U.S.C. § 4321 Congressional declaration of purpose. The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man _ and_ his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. REKEEKSE 42 U.S.C. § 4331 (excerpted) Congressional declaration of national! environmental policy. (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high- density urbanization, industrial expansion, resource exmioitation, and new and expanding technological auvances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in 68a cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans... . kk&ke KK 42 U.S.C. § 4332 (excerpted) Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts. The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies sei forth in this chapter, and (2) all agencies of the Federal Government shall— ... (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the qualty of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the _ proposal be implemented, (iii) alternatives to the proposed action, 69a (iv) the relationship between local short- term uses of man's’ environment and_ the maintenance and enhancement of long-term productivity, and (v) any irreversible and _irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;... (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves’ unresolved conflicts concerning alternative uses of available PeSOUICES, ...-« NRKRERE 70a TEXAS WATER CODE § 16.051 (excerpted) State Water Plan: Drought, Conservation, Development, and Management. (a) Not later than January 5, 2002, and before the end of each successive five-year period after that date, the board shall prepare, develop, formulate, and adspt a comprehensive state water plan that incorporates the regional water plans approved under Section 16.053. The state water plan shall provide for the orderly development, management, and conservation of water resources and preparation for and response to drought conditions, in order that sufficient water will be available at a reasonable cost to ensure public health, safety, anc welfare; further economic development; and protect the agricultural and natural resources of the entire state. ... kk Kk we * § 16.053 (excerpted) Regional Water Plans (a) The regional water planning group in each regional water planning area shall prepare a regional water plan, using an e [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0625%3A1. Public record. Not legal advice.