Village of Los Ranchos De Albuquerque v. Marsh, Nos. 90-2012

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before McKAY; EBEL
• Citation: 956 F.2d 970
• Parties: 22 Envtl. L. Rep. 21,033 VILLAGE OF LOS RANCHOS DE ALBUQUERQUE; Anne Bullock; Steven Ruffennach; Edward Banks; Bill Derr; R.E. Clark; Ann Clark; Conrad Stack; Arnold Sargeant; Kit Sargeant; Rio Grande Valley Preservation Society, Plaintiffs-Appellants, v. John O. MARSH, Secretary of the Department of the Army; Kent R. Genser, Colonel, District Engineer for the Albuquerque District of the Army Corps of Engineers; Frank Dunkle, Director of the United States Fish and Wildlife Service; Manuel Lujan, Jr., Secretary of the Department of the Interior; Henry J. Hatch, Lieutenant General; Michael Spear, Region 2 (Southwest Region) of the Fish and Wildlife Service; City of Albuquerque, Defendants-Appellees.
• Docket Number: Nos. 90-2012,90-2052,90-2026
• Decision Date: 11 February 1992

Page 970

956 F.2d 970 22 Envtl. L. Rep. 21,033 VILLAGE OF LOS RANCHOS DE ALBUQUERQUE; Anne Bullock;
Steven Ruffennach; Edward Banks; Bill Derr; R.E. Clark;
Ann Clark; Conrad Stack; Arnold Sargeant; Kit Sargeant;
Rio Grande Valley Preservation Society, Plaintiffs-Appellants,
v.
John O. MARSH, Secretary of the Department of the Army;
Kent R. Genser, Colonel, District Engineer for the
Albuquerque District of the Army Corps of Engineers; Frank
Dunkle, Director of the United States Fish and Wildlife
Service; Manuel Lujan, Jr., Secretary of the Department of
the Interior; Henry J. Hatch, Lieutenant General; Michael
Spear, Region 2 (Southwest Region) of the Fish and Wildlife
Service; City of Albuquerque, Defendants-Appellees. Nos. 90-2012, 90-2026, 90-2052. United States Court of Appeals,
Tenth Circuit. Feb. 11, 1992.

Page 971

Before McKAY, Chief Judge, ALDISERT, ^* HOLLOWAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges.

EBEL, Circuit Judge.

The appellants have filed a Petition for Rehearing and Suggestion for Rehearing en Banc to reconsider the decision rendered in our unpublished Order and Judgment of October 24, 1991. 947 F.2d 955 (10th Cir.1991). In that Order, we applied an "arbitrary and capricious" standard to review an agency determination that a proposed project would not have an environmentally significant impact sufficient to require an Environmental Impact Statement ("EIS") ¹ under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Order and Judgment at 4 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 385, 109 S.Ct. 1851, 1865, 104 L.Ed.2d 377 (1989)). In their petition for rehearing, the appellants point out that prior to the Supreme Court's decision in Marsh, the relevant standard of review in this Circuit was "reasonableness." See Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir.1988); Park County Resource Council, Inc. v. United States Dep't of Agric., 817 F.2d 609, 621 & n. 4 (10th Cir.1987) (noting circuit split on appropriate standard of review); City of Aurora v. Hunt, 749 F.2d 1457, 1468 (10th Cir.1984); League of Women Voters v. United States Corps of Engineers, 730 F.2d 579, 584-85 (10th Cir.1984); Brandon v. Pierce, 725 F.2d 555, 563 (10th Cir.1984); Jette v. Bergland, 579 F.2d 59, 64 (10th Cir.1978); Wyoming Outdoor Coordinating Council v.

Page 972

Butz, 484 F.2d 1244, 1248-49 (10th Cir.1973). ²

The panel that rendered the decision denies the petition for rehearing.

In accordance with Rule 35(b), Federal Rules of Appellate Procedure, the suggestion for rehearing en banc was transmitted to all of the judges of the court in regular active service. Based upon a poll of those judges, rehearing en banc was granted limited to the single issue of the appropriate standard for judicial review of an agency's determination that a project does not have sufficient environmental impact to require an EIS. ³

The court concludes that the appropriate standard for reviewing an agency's determination that a proposed project will not have environmental impact significant enough to require an EIS is the arbitrary and capricious standard of 5 U.S.C. § 706(2)(A).

The court summarizes the facts relevant to this issue as follows. The United States Army Corps of Engineers prepared an Environmental Assessment ("EA") of the effects of building the proposed Montano Bridge. Based on the EA, the Corps decided that the project would cause no significant environmental impact and therefore concluded that it...