956 F.2d 970 (10th Cir. 1992), 90-2012, Village of Los Ranchos De Albuquerque v. Marsh

Docket Nº:90-2012, 90-2026, 90-2052.
Citation:956 F.2d 970
Party Name:VILLAGE OF LOS RANCHOS DE ALBUQUERQUE; Anne Bullock; Steven Ruffennach; Edward Banks; Bill Derr; R.E. Clark; Ann Clark; Conrad Stack; Arnold Sargeant; Kit Sargeant; Rio Grande Valley Preservation Society, Plaintiffs-Appellants, v. John O. MARSH, Secretary of the Department of the Army; Kent R. Genser, Colonel, District Engineer for the Albuquerque
Case Date:February 11, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

Page 970

956 F.2d 970 (10th Cir. 1992)

VILLAGE OF LOS RANCHOS DE ALBUQUERQUE; Anne Bullock;

Steven Ruffennach; Edward Banks; Bill Derr; R.E. Clark;

Ann Clark; Conrad Stack; Arnold Sargeant; Kit Sargeant;

Rio Grande Valley Preservation Society, Plaintiffs-Appellants,

v.

John O. MARSH, Secretary of the Department of the Army;

Kent R. Genser, Colonel, District Engineer for the

Albuquerque District of the Army Corps of Engineers; Frank

Dunkle, Director of the United States Fish and Wildlife

Service; Manuel Lujan, Jr., Secretary of the Department of

the Interior; Henry J. Hatch, Lieutenant General; Michael

Spear, Region 2 (Southwest Region) of the Fish and Wildlife

Service; City of Albuquerque, Defendants-Appellees.

Nos. 90-2012, 90-2026, 90-2052.

United States Court of Appeals, Tenth Circuit

February 11, 1992

Page 971

Before McKAY, Chief Judge, ALDISERT, [*] HOLLOWAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges.

EBEL, Circuit Judge.

The appellants have filed a Petition for Rehearing and Suggestion for Rehearing en Banc to reconsider the decision rendered in our unpublished Order and Judgment of October 24, 1991. 947 F.2d 955 (10th Cir.1991). In that Order, we applied an "arbitrary and capricious" standard to review an agency determination that a proposed project would not have an environmentally significant impact sufficient to require an Environmental Impact Statement ("EIS") 1 under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Order and Judgment at 4 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 385, 109 S.Ct. 1851, 1865, 104 L.Ed.2d 377 (1989)). In their petition for rehearing, the appellants point out that prior to the Supreme Court's decision in Marsh, the relevant standard of review in this Circuit was "reasonableness." See Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir.1988); Park County Resource Council, Inc. v. United States Dep't of Agric., 817 F.2d 609, 621 & n. 4 (10th Cir.1987) (noting circuit split on appropriate standard of review); City of Aurora v. Hunt, 749 F.2d 1457, 1468 (10th Cir.1984); League of Women Voters v. United States Corps of Engineers, 730 F.2d 579, 584-85 (10th Cir.1984); Brandon v. Pierce, 725 F.2d 555, 563 (10th Cir.1984); Jette v. Bergland, 579 F.2d 59, 64 (10th Cir.1978); Wyoming Outdoor Coordinating Council v.

Page 972

Butz, 484 F.2d 1244, 1248-49 (10th Cir.1973). 2

The panel that rendered the decision denies the petition for rehearing.

In accordance with Rule 35(b), Federal Rules of Appellate Procedure, the suggestion for rehearing en banc was transmitted to all of the judges of the court in regular active service. Based upon a poll of those judges, rehearing en banc was granted limited to the single issue of the...

To continue reading

FREE SIGN UP