Hughes River Watershed Conservancy v. Johnson

• Decision Date: 13 January 1999
• Docket Number: No. 98-2134.,98-2134.
• Parties: HUGHES RIVER WATERSHED CONSERVANCY, an unincorporated association; Sierra Club, a corporation; West Virginia Rivers Coalition, a corporation; Russell Richards; Wilson Lewis Davis; Jettie B. Stanley; Ted Richards, Plaintiffs-Appellants, and West Virginia Citizen Action Group, a corporation, Plaintiff, v. Paul W. JOHNSON, in his official capacity as Chief Administrator of the Soil Conservation Service, United States Department of Agriculture; Arthur E. Williams, Lieutenant General, in his official capacity as Chief of Engineers, United States Army Corps of Engineers; Joe N. Ballard, Chief of Engineers, U.S. Army Corps of Engineers; William J. Hartman, State Conservationist, Natural Resources Conservation Service, U.S. Department of Agriculture; Daniel R. Glickman, in his official capacity as Secretary of the United States Department of Agriculture; Charles B. Felton, in his official capacity as Director of the West Virginia Division of Natural Resources; Shelby Vanscoy, Chief of the Board of Supervisors, Little Kanawha Soil Conservation District, Defendants-Appellees, and Mike Espy, in his official capacity as Secretary of the United States Department of Agriculture; Rollin Swank, in his official capacity as State Conservationist, Soil Conservation Service, United States Department of Agriculture; John Sims, in his official capacity as Chairman of the Board of Supervisors of the Little Kanawha Soil Conservation District, a political subdivision of the State of West Virginia; James B. Lawrence, in his official capacity as Commissioner of the West Virginia Division of Tourism and Parks; Jesse L. White, Doctor, in his official capacity as Co-Chairman of the Appalachian Regional Commission; Robert L. Bensey, in his official capacity as State Conservationist, Natural Resources Conservation Service, United States Department of Agriculture, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

165 F.3d 283

HUGHES RIVER WATERSHED CONSERVANCY, an unincorporated association; Sierra Club, a corporation; West Virginia Rivers Coalition, a corporation; Russell Richards; Wilson Lewis Davis; Jettie B. Stanley; Ted Richards, Plaintiffs-Appellants, and West Virginia Citizen Action Group, a corporation, Plaintiff, v. Paul W. JOHNSON, in his official capacity as Chief Administrator of the Soil Conservation Service, United States Department of Agriculture; Arthur E. Williams, Lieutenant General, in his official capacity as Chief of Engineers, United States Army Corps of Engineers; Joe N. Ballard, Chief of Engineers, U.S. Army Corps of Engineers; William J. Hartman, State Conservationist, Natural Resources Conservation Service, U.S. Department of Agriculture; Daniel R. Glickman, in his official capacity as Secretary of the United States Department of Agriculture; Charles B. Felton, in his official capacity as Director of the West Virginia Division of Natural Resources; Shelby Vanscoy, Chief of the Board of Supervisors, Little Kanawha Soil Conservation District, Defendants-Appellees, and Mike Espy, in his official capacity as Secretary of the United States Department of Agriculture; Rollin Swank, in his official capacity as State Conservationist, Soil Conservation Service, United States Department of Agriculture; John Sims, in his official capacity as Chairman of the Board of Supervisors of the Little Kanawha Soil Conservation District, a political subdivision of the State of West Virginia; James B. Lawrence, in his official capacity as Commissioner of the West Virginia Division of Tourism and Parks; Jesse L. White, Doctor, in his official capacity as Co-Chairman of the Appalachian Regional Commission; Robert L. Bensey, in his official capacity as State Conservationist, Natural Resources Conservation Service, United States Department of Agriculture, Defendants.

No. 98-2134.

United States Court of Appeals, Fourth Circuit.

Argued December 1, 1998.

Decided January 13, 1999.

COPYRIGHT MATERIAL OMITTED

ARGUED: Thomas Roy Michael, Michael & Kupec, Clarksburg, West Virginia, for Appellants. Robert Harris Oakley, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Lois J. Schiffer, Assistant Attorney General, Robert L. Klarquist, United States Department of Justice, Washington, D.C.; William D. Wilmoth, United States Attorney, Patrick M. Flatley, Assistant United States Attorney, Wheeling, West Virginia, for federal Appellees; Christopher B. Power, David L. Yaussy, Robinson & McElwee, Charleston, West Virginia, for Appellees Fields and Little Kanawha; Darrell V. McGraw, Jr., Attorney General, Daynus Jividen, Senior Assistant Attorney General, Charleston, West Virginia, for state Appellees.

Before NIEMEYER and HAMILTON, Circuit Judges, and HERLONG, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge NIEMEYER and Judge HERLONG joined.

OPINION

HAMILTON, Circuit Judge:

The Hughes Rivershed Water Conservancy and a number of other environmental groups (collectively referred to as HRWC) appeal the district court's grant of summary judgment in favor of the Army Corps of Engineers and the Natural Resources Conservation Service (the Agencies), following our remand of the case with instructions to direct the Agencies to fully comply with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-70d (NEPA). See Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (4th Cir.1996) (HRWC I). For the reasons stated below, we affirm.

I.

The procedural and factual history of this case are extensively summarized in this court's opinion in HRWC I. See id. Accordingly, only a brief synopsis of the facts and procedural history is set forth here.

Starting in 1975, the Agencies drafted a plan to construct a multipurpose dam on the North Fork of the Hughes River, thereby creating a 305-acre lake in the North Fork area of northwestern West Virginia (the Project). The Agencies, in compliance with NEPA and after conducting a series of public meetings, drafted an environmental impact statement (EIS) with respect to the Project. After the Agencies circulated the draft EIS for public comment, the Sierra Club, the Department of the Interior, and the Environmental Protection Agency (EPA) informed the Agencies that they considered the draft EIS deficient.

In June 1994, the Agencies released a final environmental impact statement (FEIS) that contained the Agencies' responses to the comments received on the draft EIS. One month later, the Agencies issued a record of decision approving the Project. Thereafter, HRWC filed suit challenging the Agencies' decision approving the Project. The parties agreed to stay the Project pending a decision by the district court. The case was submitted to the district court on cross-motions for summary judgment based on the administrative record. The district court granted summary judgment in favor of the Agencies, holding that the EIS was not arbitrary and capricious. HRWC noticed a timely appeal. The district court continued the stay pending appeal.

On appeal, this court held that the Agencies had: (1) violated NEPA by failing to take a sufficient "hard look" at the problem of zebra mussel infestation¹ resulting from the Project before deciding not to prepare a supplemental environmental impact statement (SEIS);² and (2) violated NEPA because the EIS's use of an inflated estimate of the Project's economic benefits from recreational use of the Project impaired fair consideration of the Project's adverse environmental effects.³ See id. at 437. Accordingly, this court vacated those parts of the district court's judgment holding the Agencies had not violated NEPA in these respects and instructed the district court on remand to direct the Agencies to reevaluate the Project in light of our holdings. See id. at 450. Specifically, this court instructed the Agencies to take a "hard look" at the problem of zebra mussel infestation and to determine, based on that "hard look," whether to prepare a SEIS addressing zebra mussel infestation. See id. at 445. Additionally, this court remanded the case for the Agencies to reevaluate the EIS's estimate of recreational benefits based upon net benefits rather than gross benefits. See id. at 447. Further, we stated, "pending the Agencies' reevaluation of the Project in compliance with NEPA, further construction of the Project is stayed." Id. at 450-51.

After this court's remand, the Agencies proceeded to reevaluate the Project by examining the specifically identified issues of potential zebra mussel infestation and projected recreational benefits. Among other things, the Agencies obtained several studies and reports.⁴

Briefly summarized, the results of the studies obtained by the Agencies concluded the following: (1) that zebra mussels are not expected to present a problem to the Project area because the pH and calcium levels in the proposed lake are not expected to be even marginally suitable for the growth of zebra mussels; and (2) that after a more detailed consideration of the Project, including an evaluation of all additional recreational benefits, the change in activity mix, and the consideration of non-use values, the estimated net recreational benefits resulting from the Project amount to $2,577,189 (1996 price base), which supports an overall positive benefit-cost ratio for the Project and, therefore, supports the Project's economic feasibility.

The results of these studies and the Agencies' reconsideration of the Project in light of this court's decision were presented in a draft supplemental environmental impact statement (DSEIS) issued in early November 1997 and circulated for public comment. A locally advertised public meeting was held on November 17, 1997, to receive questions and address concerns about the DSEIS. Notice of the availability of the DSEIS was placed in the Federal Register and copies of it were mailed directly to a number of interested parties. Comments were received, including some from HRWC, and the Agencies responded to the comments.

The final supplemental environmental impact statement (FSEIS), which includes the comments received as a result of the circulation of the DSEIS and the Agencies' responses, was issued in February 1998.⁵ Following publication of the FSEIS, the Supplemental Record of Decision (SROD) was issued on March 25, 1998. In the SROD, William J. Hartman of NRCS stated, "Having concluded that neither the zebra mussel nor recreation benefits issue would result in a change in the Recommended Plan for the North Fork Hughes River Watershed Project, I propose to implement the Project as described in the June 1994 FEIS and the July 26, 1994 record of decision." (J.A. 738).

Thereafter, the Agencies filed a motion requesting dissolution of the stay that had prohibited construction of the Project pending further study and analysis. HRWC opposed the request, contending that the Agencies still had not complied with NEPA. The district court entered summary judgment for the Agencies, finding that the Agencies had followed this court's instructions on remand and fully complied with NEPA. First, the district court determined that the Agencies' decision regarding the non-impact of zebra mussels was not arbitrary and capricious and was based upon sound scientific studies. Next, the district court found that the economic study commissioned by the Agencies supported the Agencies' conclusion in the FSEIS that the adverse environmental effects were not distorted by the recreational benefits estimated in the FEIS. Accordingly, on July 9, 1998, the district court granted summary judgment for the Agencies and stayed construction of the Project for a period expiring August 8, 1998. This court declined to extend the stay pending appeal but did expedite the appeal.

HRWC noticed a timely appeal. On...