Sabine River Authority v. US Dept. of Interior, TX-87-36-CA.

• Decision Date: 13 August 1990
• Docket Number: No. TX-87-36-CA.,TX-87-36-CA.
• Citation: 745 F. Supp. 388
• Parties: SABINE RIVER AUTHORITY, Plaintiff, Texas Water Conservation Association, Plaintiff-Intervenor, v. UNITED STATES DEPARTMENT OF INTERIOR, Donald Paul Hodel, in his official capacity as Secretary of Interior, United States Fish and Wildlife Service, Frank H. Dunkel, in his official capacity as Regional Director of the Fish and Wildlife Service, and Little Sandy Hunting and Fishing Club, Defendants, The Sierra Club and the National Audubon Society, Defendants-Intervenors.
• Court: U.S. District Court — Eastern District of Texas

745 F. Supp. 388

SABINE RIVER AUTHORITY, Plaintiff Texas Water Conservation Association, Plaintiff-Intervenor, v. UNITED STATES DEPARTMENT OF INTERIOR, Donald Paul Hodel, in his official capacity as Secretary of Interior, United States Fish and Wildlife Service, Frank H. Dunkel, in his official capacity as Regional Director of the Fish and Wildlife Service, and Little Sandy Hunting and Fishing Club, Defendants The Sierra Club and the National Audubon Society, Defendants-Intervenors.

No. TX-87-36-CA.

United States District Court, E.D. Texas, Texarkana Division.

August 13, 1990.

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William H. Burchette, Christine Ryan, Jorden Schulte & Burchette, Washington, D.C., and Carl Roberts, Longview, Tex., Frank R. Booth, Booth & Newsome, Austin, Tex., for Sabine River Authority and Texas Water Conservation Ass'n, respectively.

Ruth Harris Yeager, First Asst. U.S. Atty., Tyler, Tex., Lisa Hemmer, U.S. Dept. of Justice, Washington, D.C., Joseph I. Worsham, Dallas, Tex., for Federal defendants and Little Sandy Club, respectively.

Wendy S. Dinner, Washington, D.C., for Sierra Club and National Audubon Society.

MEMORANDUM OPINION AND ORDER

PAUL N. BROWN, District Judge.

Pending before the Court are Motions for Summary Judgment filed by all parties. After carefully reviewing all of the motions and supporting briefs, the lengthy administrative record, and the applicable law, the Court finds that the motions of the defendants should be granted and those of the plaintiffs denied.

I. BACKGROUND

The dispute in this case concerns the decision of the Department of the Interior's Fish and Wildlife Service ("FWS") to accept a conservation easement on 3800 acres of land owned by the Little Sandy Hunting and Fishing Club ("Club"). The FWS's acquisition of this easement conflicts with the plans of plaintiff Sabine River Authority ("SRA") to construct the Waters Bluff Reservoir. If constructed, the reservoir would inundate the lands encompassed by the easement.

Before acquiring the easement, the FWS prepared a draft environmental assessment ("EA") of the proposed acquisition pursuant to Department of Interior regulations implementing the review process mandated by the National Environmental Policy Act, 42 U.S.C. § 4332 ("NEPA"). (AR. P).¹ The FWS also conducted a public hearing on the proposed acquisition. (AR. I). Thereafter, the FWS issued a final EA recommending acquisition of the easement. (AR. D). The FWS also issued a "Finding of No Significant Impact" ("FONSI") setting forth the FWS's conclusion that NEPA did not require the FWS to prepare an environmental impact statement ("EIS") concerning its acquisition of the easement. (AR. G-79). The FWS then accepted the easement.

Plaintiffs' Claims

SRA contends that the FWS's FONSI and decision not to prepare an EIS concerning its acquisition of the easement violated the provisions of NEPA. SRA claims that the FONSI is erroneous because acquisition of the easement is a "major Federal action significantly affecting the quality of the human environment" that requires the preparation of an EIS. SRA also claims that the FWS's EA is inadequate in several respects and that this matter should be remanded to the FWS for further consideration. Finally, SRA alleges that the acquisition of the easement violated the Fish and Wildlife Act, 16 U.S.C. § 742a et seq. and the Refuge Recreation Act, 16 U.S.C. § 460k et seq., because the terms of the easement do not provide for a right of access for the public.

Plaintiff-Intervenor Texas Water Conservation Association ("TWCA") also contends that the FWS should have prepared an EIS concerning its acquisition of the easement. In addition, TWCA asserts that the FWS's Texas Bottomlands Hardwood Preservation Program ("Preservation Program") is itself a "major Federal action significantly affecting the quality of the human environment" and that the FWS should have prepared an EIS concerning the Preservation Program.

The FWS and the Defendant-Intervenors Sierra Club and National Audubon Society

contend that the FONSI is correct since the easement preserves the "environmental status quo" by prohibiting development on the land encompassed by the easement. The FWS also contends that its EA was adequate and that it was not required to prepare an EIS concerning the Preservation Program. Finally, the FWS asserts that the terms of the easement do not violate the provisions of either the Fish and Wildlife Act or the Refuge Recreation Act.

II. STANDARD OF REVIEW

The standard of review that this Court must apply to this case is set forth in State of Louisiana v. Lee, 758 F.2d 1081 (5th Cir.1985), cert. den., 475 U.S. 1044, 106 S.Ct. 1259, 89 L.Ed.2d 570 (1986).

NEPA requires the preparation of an EIS whenever a major federal action significantly affecting the quality of the human environment is proposed.... Judicial review of an agency's decision not to file an EIS is governed by the rule of reasonableness ... whether the agency's decision not to develop an impact statement is reasonable and made objectively and made in good faith on a reviewable environmental record.... If the decision is reasonable, the determination must be upheld.

Id. at 1083.

The plaintiffs' burden in presenting a NEPA claim is also well-established.

The court must determine whether the plaintiff has alleged facts which, if true, show that the recommended project would materially degrade any aspect of environmental quality ... If the court concludes that no environmental factor would be significantly degraded by the project, the determination not to file the EIS should be upheld. On the other hand, if the court finds that the project may cause a significant degradation of some human environmental factor (even though other environmental factors are affected beneficially or not at all), the court should require the filing of an impact statement....

Id. at 1084.

The plaintiff "must establish only that the defendant was unreasonable in concluding there was no reasonable possibility that the proposed action would significantly degrade any environmental factor." Id. at 1085.

The Supreme Court has held that an agency's decision not to file an EIS should be reviewed under the "arbitrary and capricious" standard. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, ___, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989). The Court suggested that there is little or no difference between this standard and the "reasonableness" standard that had been applied heretofore by courts in most of the circuits, including the Fifth Circuit. 490 U.S. at ___, 109 S.Ct. at 1861 n. 23. In applying this standard of review, a court "must consider whether the decision not to prepare an EIS was based on a consideration of the relevant factors and whether there has been a clear error in judgment". 490 U.S. at ___, 109 S.Ct. at 1861.

An agency's decision not to prepare an EIS may be erroneous for one of two different reasons. The evidence in the record may indicate that, "contrary to the FONSI, the agency's proposed action may have a significant impact on the human environment", or the record may show that the agency's NEPA review process was "flawed in such a manner that it cannot yet be said whether the proposed action may have a significant impact". Fritiofson v. Alexander, 772 F.2d 1225, 1238 (5th Cir. 1985). If a court finds that the proposed action may have a significant impact, the court should order the agency to prepare an EIS. Id. On the other hand, should the court determine that the agency's review was inadequate, the court should remand the case to the agency for further proceedings to correct the inadequacies. Id.

III. REVIEW OF THE FONSI

An agency need not prepare an EIS for actions that do not "significantly affect the quality of the human environment". Citizen Advocates for Responsible Expansion, Inc. v. Dole, 770 F.2d 423, 432 (5th Cir.1985). In determining whether particular agency actions "significantly affect the quality of the human environment", courts have analyzed an agency's action to determine whether those actions may alter the "environmental status quo" or cause a "significant degradation of some human environmental factor".

A federal agency proposing an action must prepare an environmental impact statement if that action may cause "a change in the environmental status quo." Sierra Club v. Hassell, 636 F.2d 1095, 1099 (5th Cir.1981).² Any agency action that "may cause a significant degradation of some human environmental factor" also requires the preparation of an EIS. State of Louisiana v. Lee, 758 F.2d at 1086. Lee and Hassell do not set forth different tests, however, since any action that "may cause a significant degradation" of the environment certainly may cause "a change in the environmental status quo". Whether a federal agency's action "may cause a significant degradation of some human environmental factor" is analyzed in light of the "environmental status quo" existing at the time of the proposed action. Id.

The principle underlying the determination of whether an agency's action may "significantly affect the quality of the human environment", by altering the "environmental status quo" or causing "a significant degradation of some human environmental factor" is that NEPA applies only to those federal actions whose effects may cause changes in the physical environment. NEPA's legislative history shows that Congress was only concerned with the effects of federal actions that may cause changes in the physical environment. "What is involved in NEPA is a congressional declaration that.... we will not intentionally initiate actions which do irreparable damage to the air, land, and water...." Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772-73, 103 S.Ct. 1556, 1560, 75 L.Ed.2d 534 (1983), citing, 115 Cong.Rec. 40416 (1969) (Emphasis original). Indeed, a change in the physical environment is the...