Como-Falcon Community Coalition, Inc. v. U.S. Dept. of Labor, COMO-FALCON
| Decision Date | 19 November 1979 |
| Docket Number | No. 79-1165,COMO-FALCON,79-1165 |
| Citation | 609 F.2d 342 |
| Parties | , 9 Envtl. L. Rep. 20,755 COMMUNITY COALITION, INC., Appellant, v. UNITED STATES DEPARTMENT OF LABOR; Raymond Marshall, United States Secretary of Labor; Richard C. Gilliland, Regional Administrator, United States Department of Labor; Rudy Perpich, Governor of the State of Minnesota, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ronald J. Riach, Franke, Riach & Franke, St. Paul, Minn., for appellant.
Carl Strass, Atty., App. Section, Land & Natural Resources Div., Dept. of Justice, Washington, D. C., for appellees.
Warren R. Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., William P. Marshall, Sp. Asst. Atty. Gen., St. Paul, Minn., on brief, for appellee, Governor of the State of Minnesota.
Sanford Sagalkin, Acting Asst. Atty. Gen., Andrew W. Danielson, U. S. Atty., Francis X. Hermann, Asst. U. S. Atty., Minneapolis, Minn., and Jacques B. Gelin and Carl Strass, Attys., Dept. of Justice, Washington, D. C., and Howard L. Robinson, Atty., U. S. Dept. of Labor, Washington, D. C., on brief, for appellee, Federal.
Before LAY, ROSS and HENLEY, Circuit Judges.
The fundamental issue presented is whether the district court, The Hon. Harry H. MacLaughlin, presiding, erred in holding that the establishment of a Job Corps center by the United States Department of Labor on the former campus of Bethel College in St. Paul, Minnesota did not require the filing of an environmental impact statement (EIS) under the National Environmental Policy Act of 1969, 42 U.S.C.A. §§ 4321-4369 (1979) (NEPA).
Como-Falcon Coalition, Incorporated, is a nonprofit corporation comprised of residents and owners of residential property living near the site where the Job Corps center is proposed. It urges that the establishment of the Job Corps center constitutes major federal action significantly affecting the quality of human environment and that the Department of Labor is required to file an appropriate impact statement. 42 U.S.C. § 4332. The Coalition presents several subsidiary questions on appeal: (1) Does NEPA require a public hearing prior to making the decision on the requirement of an EIS? (2) Did the district court err in denying pretrial discovery? 1 (3) Whether the district court's findings that the establishment of the Job Corps center did not significantly affect the quality of human environment are clearly erroneous.
On October 17, 1977, the Secretary of Labor informed then Governor Rudy Perpich of Minnesota of the Department of Labor's intent to establish a Job Corps center on the Bethel campus. Pursuant to 29 U.S.C. § 925(c) (1976), 2 the Governor was given thirty days in which to disapprove the project. A public meeting was held on October 20, 1977, before a representative of the regional office of the Department of Labor. At that time some neighborhood residents opposed locating the Job Corps center on the Bethel campus. Shortly thereafter the Mayor of St. Paul pledged his support for the project but two nearby municipalities, Roseville and Falcon Heights, adopted resolutions against the proposed center. The Governor sought and obtained an extension of time to study the proposal. Finally, on December 29, 1977, Governor Perpich conditionally approved establishment of the Job Corps center.
On February 1, 1978, plaintiff commenced this suit seeking injunctive relief on the ground that an EIS should have been issued. Originally Judge MacLaughlin granted a preliminary injunction. The court thereafter held a plenary trial and on December 11, 1978, dissolved the injunction, holding that although the Department of Labor's action constituted a major federal action, the determination that an EIS was not needed was reasonable because the evidence demonstrated there was no adverse environmental impact affecting the human environment. Como-Falcon Coalition, Inc. v. United States Department of Labor, 465 F.Supp. 850 (D.Minn.1978).
Upon granting a preliminary injunction, the district court required the Department of Labor to compile an administrative record on which it based its assessment that an EIS was not necessary. The Department also conducted a supplemental study and reassessment of the environmental impact of the proposed center. The court evaluated the administrative record and the plaintiff's counter evidence in terms of whether the reassessment was reasonable under the circumstances. Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th Cir. 1974) (en banc). Plaintiff argues that the Department's failure to file an EIS was a violation of NEPA because the environment will be affected in numerous ways: (1) vehicular and pedestrian congestion, (2) impact on local utilities, (3) impact on commerce, social services, (4) contribution to criminal activity, (5) police and fire protection and (6) alteration of the character of the neighborhood. As indicated, the district court analyzed the evidence and concluded in a detailed opinion that the agency determination not to file an environmental impact statement was not unreasonable.
Before passing on the court's analysis, we turn to the Coalition's challenge that they were denied a public hearing and had no reasonable opportunity to present evidence to the Department of Labor before it concluded that an EIS was not necessary. The district court relying on Hanly v. Kleindienst, 471 F.2d 823, 835-36 (2d Cir. 1972), Cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973), impliedly held that some public hearing was necessary, but that the public meetings held by the Department of Labor in May and October 1977 were sufficient to comply with the procedural requirements established by the Second Circuit. 3 This court has never passed on the precise question of whether some procedural hearing opportunities are mandated before an agency determines whether to file an EIS. Plaintiff cites no statutory or administrative authority requiring one. There is no question that an agency must make a good faith determination of whether an EIS is required. As we have indicated, that determination is subject to the court's review to see if it was reasonable under the circumstances. Whether the agency has exercised good faith discretion depends in part on the depth of study of the particular problem and whether the agency has considered all significant environmental effects as required by NEPA.
Sometimes it may be advisable for the agency to provide for public input and opinion through a public hearing and in weighing the reasonableness of the agency action the court may consider the opportunity of the public, through hearings or otherwise, to make their views known and to make input into the decision. But there is no statutory requirement that the agency provide such an opportunity, or an opportunity of a particular kind, and we are unwilling by judicial decision to legislate such a requirement into the Act.
In this case the Department of Labor gave to representatives of the property owners in the affected area an opportunity to express their views, and they did so. As stated by the court in Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973):
To hold in the abstract that meaningful public participation in the NEPA process cannot exist unless public hearings are held subsequent to the issuance of a draft environmental impact statement and prior to the preparation of the final document would be to substitute our judgment for that of Congress. It is true that the legislative history of NEPA indicates that the desire for a greater degree of responsiveness by administrative decision makers was one factor in the passage of NEPA. Despite this concern, however, there is no express provision in NEPA requiring administrative hearings as a procedural step in the preparation of § 102(2)(C) environmental impact statements.
We find this language controlling here. See also Scenic Rivers Ass'n v. Lynn, 520 F.2d 240 (10th Cir. 1975), Rev'd on other grounds, sub nom. Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976); Nucleus of Chicago Homeowners Ass'n v. Lynn, 524 F.2d 225 (7th Cir. 1975), Cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976).
We move then to the more fundamental issue of whether under the facts presented, NEPA requires the preparation of an EIS. We have...
To continue reading
Request your trial
-
People Against Nuclear Energy v. U.S. Nuclear Regulatory Com'n
...of the neighborhood, reduce property values, and increase the dangers of crime. See, e.g., Como-Falcon Community Coalition, Inc. v. U. S. Dep't of Labor, 609 F.2d 342, 345-346 (8th Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2154, 64 L.Ed.2d 789 (1980) (Job Corps center); Nucleus of C......
-
City of West Chicago, Ill. v. U.S. Nuclear Regulatory Com'n
...Circuit has held that such notice and comment are nonetheless required, id. at 836. But see Como-Falcon Community Coalition v. United States Dept. of Labor, 609 F.2d 342, 345 (8th Cir.1979), certiorari denied, 446 U.S. 936, 100 S.Ct. 2154, 64 L.Ed.2d 789. This Circuit apparently has not squ......
-
MO. COALITION FOR ENVIRONMENT v. Corps of Engineers
...points that mere economic and social impacts are insufficient to require preparation of an EIS, Como-Falcon Community Coalition, Inc. v. U.S. Dept. of Labor, 609 F.2d 342, 345-46 (8th Cir.1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2154, 64 L.Ed.2d 789 (1980); and socioeconomic impacts are......
-
Olmsted Citizens for a Better Community v. United States
...general manner as it was previously, there is no significant impact on the "human environment". Como-Falcon Community Coalition, Inc. v. United States Dep't of Labor, 609 F.2d 342 (8th Cir.1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2154, 64 L.Ed.2d 789 (1980); Nucleus of Chicago Homeowner......
-
Nepa and Gentrification: Using Federal Environmental Review to Combat Urban Displacement
...at 642 (quoting 42 U.S.C. § 4331).77. Id. at 648.78. Id. at 647 (citing 42 U.S.C. § 4331(a)) (internal quotation marks omitted).79. Id.80. 609 F.2d 342, 343 (8th Cir. 1979). Como-Falcon Community Coalition, Inc. is distinguishable from Hanly v. Mitchell because establishment of the proposed......
-
A civic Republican perspective on the National Environmental Police Act's process for citizen participation.
...943 (5th Cir. 1982) (no obligation for public input at this stage); Como-Falcon Community Coalition, Inc. v. United States Dep't of Labor, 609 F.2d 342, 345 (8th Cir. 1979) (same), cert. denied, 446 U.S. 936 (1980). The EA and FONSI documents themselves, however, are available to the public......