Quinonez-Lopez v. Coco Lagoon Development Corp., QUINONEZ-LOPEZ

• Decision Date: 26 April 1984
• Docket Number: QUINONEZ-LOPEZ,No. 83-1353,83-1353
• Citation: 733 F.2d 1
• Parties: , 14 Envtl. L. Rep. 20,445 Julio, et al., Plaintiffs, Appellants, v. COCO LAGOON DEVELOPMENT CORPORATION, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

733 F.2d 1

20 ERC 2226, 14 Envtl. L. Rep. 20,445

Julio QUINONEZ-LOPEZ, et al., Plaintiffs, Appellants, v. COCO LAGOON DEVELOPMENT CORPORATION, et al., Defendants, Appellees.

No. 83-1353.

United States Court of Appeals, First Circuit.

Argued Feb. 6, 1984.

Decided April 26, 1984.

Armando Cardona Acaba, Bayamon, P.R., with whom Gretchen Coll Marti, Santurce, P.R., Pedro J. Saade Llorens, Hato Rey, P.R., Josefina Pantoja Oquendo, Rio Piedras, P.R., Luis Amauri Suarez Zayas, Maria Dolores Fernos, Hato Rey, P.R., Jose E. Colon Santana, and Emmalind Garcia Garcia, Rio Piedras, P.R., were on brief, for appellants.

Martin W. Matzen, Atty., Dept. of Justice, Washington, D.C., with whom F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Daniel F. Lopez-Romo, U.S. Atty., Francisco A. Besosa, Asst. U.S. Atty., San Juan, P.R., and Anne S. Almy, Atty., Dept. of Justice, Washington, D.C., were on brief, for federal appellees.

Steven C. Lausell, San Juan, P.R., with whom Jimenez & Fuste, San Juan, P.R., was on brief, for Coco Lagoon Development Corp., Coco Beach Estates, Inc., and Arturo Diaz, its President.

Before CAMPBELL, Chief Judge, WISDOM, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

BREYER, Circuit Judge.

This case concerns the validity of the Corps of Engineers' decision to grant Coco Lagoon Development Corp. ("CLDC") a permit to fill a wetland area for the construction of housing on the northern coast of Puerto Rico. The Corps granted the permit on the basis of an "Environmental Assessment." It concluded that the filling project would have no significant adverse environmental impact. Thus, there was no need to go further and prepare a full environmental impact statement ("EIS"). See 42 U.S.C. Sec. 4332(C) (EIS required only for "major Federal actions significantly affecting the quality of the human environment"). Appellants challenge this "Finding of No Significant Impact." We affirm the district court's dismissal of that challenge.

Twenty years ago, the area in question was a mangrove forest, a type of environment that all the parties acknowledge to be a valuable and productive wetland. In the late 1960's, before enactment of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. Secs. 4321 et seq., CLDC deposited large volumes of fill in the area, destroying the mangroves in all but one corner of the property. No one challenges the propriety of this pre-NEPA activity. In at least a sizeable portion of the filled area, however, insufficient fill was deposited to create permanently dry land; this portion continued to support some types of wetland vegetation. Any further filling activity affecting this "secondary wetland" portion of the area (and any affecting the remaining mangrove areas) requires a Corps permit, see 33 U.S.C. Secs. 1344, 1362(7), and the issuance of a Corps permit is now subject to NEPA.

In the late 1970's, CLDC resumed filling activity at the site, without seeking permission from the Corps. It deposited a 250 foot square "pad" of fill in a wetland clearing in the remaining mangrove area, to provide a location for a "sanitary treatment plant." It also resumed filling in the "secondary wetland" area. In January 1980 the Corps issued a cease and desist order, telling CLDC to stop these activities unless and until it obtained an appropriate permit. CLDC applied for the permit, and it entered into negotiations with the Corps concerning the permissible scope of filling in the area. Various federal and Commonwealth agencies studied the site and the proposals, offered their opinions, and participated in the negotiations between the Corps and CLDC. As a result of these negotiations, CLDC agreed to remove the fill it had placed in the mangrove clearing and to relocate the treatment plant away from the surviving mangrove area. It also agreed that, if the Corps permitted it to continue to fill the 100 or so acres of "secondary wetlands," it would create a new 30-acre mangrove forest elsewhere on its property, to compensate for the lost wetlands. The Corps granted the permit, with these conditions. It also issued an environmental evaluation concluding that the area to be filled was of marginal environmental value; that, in light of the agreement to create a more valuable mangrove area, the "net environmental impact of the issuance of the permit is positive;" and that an environmental impact statement was therefore unnecessary. It is these conclusions that appellants challenge here.

The critical determination of the Corps here under review is that there is no substantial possibility that CLDC's permitted activities could significantly affect the quality of the human environment. Cf. Winnebago Tribe v. Ray, 621 F.2d 269, 271 (8th Cir.) (party challenging decision not to prepare EIS bears burden of establishing substantial possibility that agency action "could significantly affect the quality of the human environment") (quoting Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th Cir.1974)), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Maryland-National Capital Park & Planning Commission v. United States Postal Service, 487 F.2d 1029, 1039-40 (D.C.Cir.1973) (EIS unnecessary only when "potential impacts are truly insignificant"). Appellants must show the Corps' determination to be "arbitrary, capricious, an abuse of discretion," 5 U.S.C. Sec. 706(2)(A); in essence, they must seek to show that, in light of the factual circumstances, the Corps' decision was unreasonable. See, e.g., National Wildlife Federation v. Appalachian Regional Commission, 677 F.2d 883, 889 (D.C.Cir.1981); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1002 (D.C.Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980).

Different courts have urged different degrees of "judicial scrutiny" of the underlying record in cases like this one. Compare, e.g., City of Davis v. Coleman, 521 F.2d 661, 673-74 (9th Cir.1975) (relatively searching review of "reasonableness") and Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973) (same) with, e.g., First National Bank of Chicago v. Richardson, 484 F.2d 1369, 1381 (7th Cir.1973) (more deferential "arbitrary or capricious" standard) and Hanly v. Kleindienst, 471 F.2d 823, 828-29 (2d Cir.1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973) (similar); see generally Township of Lower Alloways Creek v. Public Service Electric & Gas Co., 687 F.2d 732, 741-42 (3rd Cir.1982) (comparing two approaches); Shea, The Judicial Standard for Review of Environmental Impact Statement Threshold Decisions, 9 B.C.Envtl.Aff.L.Rev. 63 (1980). And they have used various legal formulae to describe the...