Winnebago Tribe of Nebraska v. Ray

• Decision Date: 13 March 1980
• Docket Number: No. 79-1632,79-1632
• Citation: 621 F.2d 269
• Parties: , 10 Envtl. L. Rep. 20,243 WINNEBAGO TRIBE OF NEBRASKA, Appellant, v. Col. James W. RAY, District Engineer, Omaha District, United States Army, Corps of Engineers, Iowa Public Service Company, and Nebraska Public Power District, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 269

621 F.2d 269

14 ERC 1367, 10 Envtl. L. Rep. 20,243

WINNEBAGO TRIBE OF NEBRASKA, Appellant, v. Col. James W. RAY, District Engineer, Omaha District, United

States Army, Corps of Engineers, Iowa Public

Service Company, and Nebraska Public

Power District, Appellees.

No. 79-1632.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 7, 1979.

Decided March 13, 1980.

Michael D. Gooch, Intertribal Legal Services, Winnebago, Nev. (argued), and Lawrence Hammerling, Omaha, Neb., on brief, for appellant.

Jerry Jackson, Atty., Dept. of Justice, App. Section, Land & Natural Resources Div., Washington, D.C., argued, for appellees.

James J. DeMars, Barlow, Johnson, DeMars & Flodman, Lincoln, Neb., argued, for appellees and on brief, for Iowa Public Service Co. and Nebraska Public Power District.

Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D. C., Edward G. Warin, U. S. Atty. and David A. Kubichek, Asst. U. S. Atty., Omaha, Neb., Raymond N. Zagone and Robert L. Klarquist, Attys., Dept. of Justice, Washington, D. C., on brief, for federal appellees.

Before LAY, Chief Judge, ^* and BRIGHT and McMILLIAN, Circuit Judges.

BRIGHT, Circuit Judge.

Winnebago Tribe of Nebraska (the Tribe) appeals an order of the district court ¹ denying its request for a permanent injunction to bar construction of a proposed power line running from Raun, Iowa, to Hoskins, Nebraska. The Tribe claims the district court erred in holding that the issuance of a permit to cross the Missouri River by the Army Corps of Engineers (Corps) was not a "major federal action" within the meaning of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-47 (1976). The Tribe also maintains that, contrary to the district court's holding, it sustained its burden of proof by raising substantial environmental issues. Finally, the Tribe argues that the Corps' determination not to prepare an environmental impact statement (EIS) was unreasonable. For reasons set forth below, we reject these contentions and affirm the holding of the district court.

I. Background.

Appellee Nebraska Public Power District (NPPD) began planning construction of a 345 KV transmission line from Raun, Iowa, to Hoskins, Nebraska, in 1975. The proposed line would cross the Missouri River 150 feet south of an Omaha Public Power District (OPPD) line and run through the Winnebago Indian Reservation. In the fall of 1977, NPPD informed the Tribe and the Bureau of Indian Affairs of its intent.

On July 13, 1978, appellee Iowa Public Service Company (IPS), a joint venturer with NPPD in this project, applied to the Corps for a permit to cross the Missouri River, as required by 33 U.S.C. § 403 (1976) (originally enacted as Rivers and Harbors Appropriation Act of March 3, 1899, ch. 425, § 10, 30 Stat. 1151) (hereinafter section 10). Before granting the permit, the Corps prepared an environmental effect assessment on the impact of the river-crossing portion of the line (approximately 1.25 miles out of 67 miles). The assessment concluded that an environmental impact statement was not required because "(t) here are no significant environmental impacts associated with this project." The assessment did not mention any possible adverse effect on bald eagles, a protected species. ² The Corps granted the section 10 permit on January 10, 1979.

On April 30, 1979, the Tribe filed the present suit alleging noncompliance with NEPA and seeking to enjoin construction pending compliance. On May 1, 1979, the district court granted a temporary restraining order. In the course of a three-day trial in May, the court heard testimony on the potential harm to the American bald eagle, a protected species, as well as arguments on the sufficiency and scope of the Corps' assessment. The trial court ruled that the assessment properly considered only the river-crossing portion of the line, because the scope of the federal permit was limited to this area and the federal government was not funding the project. After weighing the evidence on danger to the American bald eagle, the district court concluded that the Tribe had failed to raise a substantial environmental issue. Accordingly, the trial court denied the requested injunctive relief.

II. Analysis.

Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C) (1976), requires that the relevant To upset an agency determination not to prepare an impact statement, it still must be shown that the agency's determination was not reasonable under the circumstances. This will require a showing that the project could significantly affect the quality of the human environment. Save Our Ten Acres v. Kreger, (472 F.2d 463, 466 (5th Cir. 1973)). We therefore hold that review of an agency's determination not to prepare an impact statement should be measured by its reasonableness in the circumstances, not as to whether it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. (MPIRG I, supra, 498 F.2d at 1320 (footnote omitted); accord, Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 1087-88 (8th Cir. 1979).)

federal agency prepare an EIS for "major federal actions significantly affecting the quality of the human environment." Initially, the agency determines whether the proposed action triggers the EIS requirement. See Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1319-20 (8th Cir. 1974) (en banc ) (MPIRG I ). In MPIRG I, supra, this court set forth the standard for judicial review of an agency's threshold determination not to prepare an EIS:

MPIRG I, in requiring that the plaintiff must show "that the project could significantly affect the quality of the human environment," relied upon Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973) (SOTA). In SOTA and subsequent cases, the Fifth Circuit elaborated upon the required showing by allocating burdens of proof: the plaintiff must raise a substantial environmental issue concerning the proposed project, and then the burden shifts to the defendant to support the reasonableness of the negative determination. See SOTA, supra, 472 F.2d at 467; Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir. 1973); Image of Greater San Antonio, Texas v. Brown, 570 F.2d 517, 522 (5th Cir. 1978).

In the present suit, the district court assigned appellant the burden of raising a substantial environmental issue. The parties to the present appeal do not take issue with the district court's use of this approach, nor do we find the method inappropriate. A number of district courts throughout the country have employed this analysis. See Pokorny v. Costle, 464 F.Supp. 1273 (D.Neb.1979); Hiatt Grain & Feed, Inc. v. Bergland, 446 F.Supp. 457 (D.Kan.1978), aff'd 602 F.2d 929 (10th Cir. 1979); Mid-Shiawassee County Concerned Citizens v. Train, 408 F.Supp. 650 (E.D.Mich.1976), aff'd mem., 559 F.2d 1220 (6th Cir. 1977); Jones v. HUD, 390 F.Supp. 579 (E.D.La.1974). Indeed, without commenting on the district court's characterization of the burden of proof, this court has affirmed an opinion that concluded that many of the plaintiff's claims failed to raise a substantial environmental issue. Monarch Chemical Works, Inc. v. Exon, 466 F.Supp. 639 (D.Neb.), aff'd sub nom. Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083 (8th Cir. 1979). Accordingly, we must determine whether the district court erred in holding that the Tribe failed to meet its burden.

To establish a substantial environmental issue, the "(p)laintiff must allege facts (omitted from consideration in the administrative record) which, if true, would constitute a 'substantial' impact upon the environment." Hiatt Grain & Feed, Inc. v. Bergland, supra, 446 F.Supp. at 490 (citations omitted). The alleged deficiency must be of sufficient significance to warrant shifting the burden of proof. See Monarch Chemical Works, Inc. v. Exon, supra, 466 F.Supp. at 647-48; Pokorny v. Costle, supra, 464 F.Supp. at 1275-77.

The Tribe claims that the administrative record is deficient in three respects: (1) it ignores sixty-five miles of the sixty-seven mile transmission line; (2) it does not consider certain viable alternatives; and (3) it does not contemplate potential harm to bald eagles. We deal with these claims in the order presented.

A. Failure to Consider the Entire Project.

The Tribe alleges that the administrative record should have considered environmental impacts posed by the entire transmission line, rather than just the river-crossing portion. Appellant's claim presents two related issues: (a) whether the Corps wields such control and responsibility over the entire project that nonfederal segments must be included in the assessment; and (b) assuming limited federal involvement, whether the Corps nevertheless must consider the impacts of nonfederal segments as secondary effects of the proposed action.

The Tribe notes initially that the power line will not be constructed without the section 10 permit. In light of "but for" veto power, the Tribe argues, the Corps wields sufficient control over the entire project to require project-wide environmental analysis. Factual or veto control, however, must be distinguished from legal control or "enablement." See NAACP v. Medical Center, Inc., 584 F.2d 619 (3d Cir. 1978) (Medical Center); Atlanta Coalition on the Transportation Crisis, Inc. v. Atlanta Regional Commission, 599 F.2d 1333 (5th Cir. 1979) (Atlanta Coalition ).

In "enablement" cases federal action is a legal condition precedent to accomplishment of an entire nonfederal project. Medical Center, supra, 584 F.2d at 632-33; Atlanta Coalition, supra, 599 F.2d at 1345-47. Thus, for example, the federal statute at issue in Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972), required the Federal Power Commission to assure that the entire project was "best adapted" to a comprehensive environmental plan before licensing...