Abenaki Nation of Mississquoi v. Hughes

• Decision Date: 22 October 1992
• Docket Number: Civ. A. No. 2:92-CV-279.
• Citation: 805 F. Supp. 234
• Court: U.S. District Court — District of Vermont
• Parties: The ABENAKI NATION OF MISSISSQUOI, the Abenaki Tribal Council, Dee Brightstar, Dorcus Churchill, Michael Delaney, Blackhorse Phillips, Hilda Robtoy, April St. Francis, David St. Francis, Homer Francis, and Robert Wells, all on their own behalves and on Behalf of the Abenaki People v. James K. HUGHES, Lt. Colonel, District Engineer of the New England Division of the Corps of Engineers of the United States Department of the Army, William F. Lawless, P.E., Chief Regulatory Branch, Operations Division, of the Corps of Engineers of the United States Department of the Army, Philip R. Harris, Colonel, Division Engineer of the New England Division of the Corps of Engineers of the United States Department of the Army, Michael P.W. Stone, Secretary of the Army, The Village of Swanton, Vermont, and George Lague, Village Manager of the Village of Swanton, Vermont.

805 F. Supp. 234

The ABENAKI NATION OF MISSISSQUOI, the Abenaki Tribal Council, Dee Brightstar, Dorcus Churchill, Michael Delaney, Blackhorse Phillips, Hilda Robtoy, April St. Francis, David St. Francis, Homer Francis, and Robert Wells, all on their own behalves and on Behalf of the Abenaki People v. James K. HUGHES, Lt. Colonel, District Engineer of the New England Division of the Corps of Engineers of the United States Department of the Army, William F. Lawless, P.E., Chief Regulatory Branch, Operations Division, of the Corps of Engineers of the United States Department of the Army, Philip R. Harris, Colonel, Division Engineer of the New England Division of the Corps of Engineers of the United States Department of the Army, Michael P.W. Stone, Secretary of the Army, The Village of Swanton, Vermont, and George Lague, Village Manager of the Village of Swanton, Vermont.

Civ. A. No. 2:92-CV-279.

United States District Court, D. Vermont.

October 22, 1992.

COPYRIGHT MATERIAL OMITTED

James A. Dumont, Cindy E. Hill, Sessions, Keiner, Dumont, Barnes & Everitt, Middlebury, Vt., for plaintiffs.

Thomas D. Anderson, Helen M. Toor, Asst. U.S. Attys., Burlington, Vt., for defendants James K. Hughes, Lt. Colonel, et al., William F. Lawless, P.E., et al., Philip R. Harris, Colonel, et al., Michael P.W. Stone, Secretary of Army.

Stephen C. Walke Jr., Paterson & Walke, P.C., Montpelier, Vt., for defendants The Village of Swanton, Vt. and George Lague, Village Manager of Village of Swanton, Vt.

OPINION AND ORDER

PARKER, Chief Judge.

I. Introduction

Plaintiffs moved for a temporary restraining order and preliminary injunction to enjoin defendants from all actions associated with raising the spillway elevation of the Orman Croft Generating Station, a hydroelectric facility in Highgate, Vermont. The parties agreed to a hearing on the merits and plaintiffs withdrew their temporary restraining order in early September, 1992. The parties understood and agreed that a decision on the merits would obviate the need for a preliminary injunction.

The litigation stems from the authorization granted to the Village of Swanton (hereafter "the Village") to raise the spill-way elevation of the Orman Croft Generating Station (hereafter "the Project") by the Army Corps of Engineers (hereafter "the Corps") on July 15, 1992. Pursuant to Section 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344(e), this authorization was granted under a general permit, General Permit 38, first issued by the Corps in 1982 and reissued in 1987.

Plaintiffs claim that General Permit 38 (hereafter "GP 38") is invalid because of procedural violations. Even if valid, plaintiffs claim that the Project is not eligible for authorization under GP 38. Plaintiffs also allege that the authorization granted by the Corps under GP 38 violates a variety of federal statutes, specifically (1) The National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 (1992) (hereafter "NEPA"); (2) the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1992) (popularly known as the Clean Water Act) (hereafter "CWA"); (3) the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (1992) (hereafter "NHPA"); and (4) the Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013 (1992) (hereafter "NAGPRA"). For these reasons plaintiffs claim that the authorization by the Corps is void and that until the Project is properly permitted all activity connected with it must cease.

II. Background

The Village has operated a hydroelectric facility at Highgate Falls since 1928. It has upgraded the facility twice before, in 1930 and 1954, and in 1979 decided to upgrade it again.¹

In order to proceed with this proposed Project, the Village was required to apply for a license from the Federal Energy Regulatory Commission (hereafter "FERC") pursuant to the Federal Power Act, 16 U.S.C. §§ 791a-828 (1992). It also needed a permit from the Corps for the discharge of dredged or fill material² into the Mississquoi River pursuant to the Corps' responsibilities under the CWA, 33 U.S.C. § 1344.

Before issuing a license, the FERC must consider not only the power and development issues involved with a project but also issues related to the project's impact on environmental quality.³ For its part, the Corps may issue individual permits on a project by project basis (otherwise known as individual § 404 permits) or general permits, if activities involved "will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effects on the environment," on a State, regional or nationwide basis. 33 U.S.C. § 1344(e)(1).⁴

On October 22, 1982 the Corps issued GP 38 (administrative record (AR) 170) for certain hydroelectric development activities in the New England region.⁵ The public notice of the proposed GP 38 declared that

To avoid duplicating the regulatory control exercised by the Federal Energy Regulatory Commission (FERC) for hydropower development or expansion projects which cause minimal or no adverse environmental effects, the New England Division of the U.S. Army Corps of Engineers proposes to issue a general permit that, subject to certain conditions, would eliminate the need for Corps of Engineers approval of fills associated with such work at existing dams or at new or existing run-of-river projects throughout New England.

(AR 146).

GP 38 was subject to six Special Conditions ("SC") and 24 General Conditions. (AR 189). The second SC states that the "activity which includes the discharge must be licensed or formally exempted by the FERC. No discharge is allowed unless and until the FERC license or formal exemption, as well as all other required local, State and Federal licenses and permits have been obtained." (AR 189).

In short, GP 38 provided for FERC to be the lead agency in regulating hydroelectric projects in the New England Region and ensuring that they complied with applicable regulations, including NEPA and NHPA. While the Corps was still responsible for ensuring compliance with the dictates of the CWA, GP 38 called for the Corps to utilize the information gathered by the FERC and issue authorization if the discharge "caused minimal or no adverse environmental effects." If FERC concluded that there would be more than minimal adverse effects, or if the Corps determined on its own that a proposed action was outside the realm of GP 38, permit applicants would not be eligible for authorization under GP 38 and would have to proceed with an individual § 404 permit application.

Some time after the Corps issued GP 38 the Village commenced efforts to obtain the necessary permits for the envisioned improvements to the Highgate facility. Pursuant to the FPA and NEPA, the FERC conducted an Environmental Assessment ("EA") of the Project and made a Finding of No Significant Impact ("FONSI"). (AR 105). Specifically it found that the project would result in only "short-term minor environmental impacts" and concluded that "issuance of a license, as conditioned herein, for the project will not constitute a major Federal action significantly affecting the quality of the human environment." (AR 105 at p. 8).⁶

Prior to issuance of the FERC license, the Corps determined that the project was eligible under GP 38 and issued the authorization to proceed on January 24, 1984. The Corps based its determination on the Village's application for a permit, its FERC license application and the EA conducted by FERC. (AR 143). On May 24, 1984 FERC issued a license for the Project. (AR 105).

In 1987 GP 38 was reissued for another five years with several changes and amendments after public notice was given (AR 178) and a supplement to the 1982 Statement of Findings was made.⁷ (AR 188). In the meantime, work on the Project remained in the initial stages. On January 22, 1990, the Village filed a request with FERC for the amendment of its license, proposing to reduce the overall height of the project.⁸ In considering this request, FERC found that the amended project would "reduce the adverse effects of the project, most significantly those impacts on cultural resources and wetlands." (AR 106 at p. 2). On March 14, 1991, FERC issued an order amending the original license to conform with the Village's proposed changes. (AR 106).

On September 5, 1991, the Village submitted a request to the Corps for authorization under GP 38 for the reduced Project. The Village initially believed that the authorization granted by the Corps in 1984 was suitable ground to grant authorization in 1991. (AR 5) In informal meetings and discussions as early as mid-September 1991 (AR 4) and as late as February, 1992, (AR 44) Corps personnel from the New England Division informed the Village that the Project was not eligible for authorization under GP 38 and that an individual § 404 permit would be necessary. This conclusion was based upon an expressed concern regarding the adverse impact of the Project on wetlands and the inadequacy of proposed mitigation plans.

Corps Headquarters agreed with the New England Division that an individual § 404 permit would be required if mitigation plans were not adequate but also stated that a conditioned general permit assuring adequate mitigation would allow authorization under GP 38. (AR 84). It advised the New England Division that adequate mitigation could be considered to remain below the minimal impact threshold for the general permit just as under NEPA it can be considered to reach a finding of no significant impact. (AR 103).

After consultation with the Vermont state archeologist concerning historical resources at the mitigation sites (AR 87, 94), the Village (AR 92), and Corps Headquarters (AR 101, 103), the Corps issued a conditioned authorization under GP 38 on July 15, 1992. (AR 132). This conditioned authorization imposed 23 Special Conditions ("SC") which the Corps believes ensures that the Project...