Hillsdale Environmental Loss Prevention, Inc. v. United States Army Corps of Engineers
702 F.3d 1156
10th Cir.2012Background
- BNSF sought a §404 dredge-and-fill permit from the Corps for a new intermodal facility near Gardner, Kansas, triggering CWA review and NEPA analysis due to protected streams and wetlands.
- Gardner site has 28,000 linear feet of streams and 4.61 acres of wetlands; Wellsville North is a nearby alternative with greater environmental impacts.
- Corps prepared an EA and found Gardner the least environmentally damaging practicable alternative (LEDP) after comparing several sites and designs.
- EPA, KDHE, and other agencies participated; the Corps concluded air, water, and related impacts would be not significant with mitigation.
- Hillsdale challenged the Corps’ analyses under NEPA and the CWA; the district court granted summary judgment for the Corps, which the Court of Appeals affirmed on appeal.
- The project proceeded substantially during the appeal, with most jurisdictional waters already affected or mitigated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Corps properly found no less-damaging practicable alternative under the CWA | Hillsdale asserts the presumption of a non-waters-altering alternative was not rebutted | Corps rebutted the presumption using BNSF criteria and record support | Yes; Corps adequately rebutted and chose Gardner as LEDP site |
| Whether the Corps’ NEPA analysis was adequate and not arbitrary or capricious | Hillsdale contends the EA failed to adequately analyze environmental effects and required an EIS | Corps conducted a thorough EA, with mitigation and agency concurrence; no significant impact found | Yes; NEPA analysis was reasonable and mitigation sufficient to avoid need for an EIS |
| Whether Hillsdale’s NEPA claims are moot or prudentially moot given project progress | Construction progressed substantially, seeking dismissal as moot | Remand or continued relief possible; not prudentially moot due to ongoing impacts | Not moot for merits; claims not barred by prudential mootness |
| Whether off-site emissions, including non-truck and I-35 routes, were properly evaluated under NEPA | Hillsdale argues significant off-site emissions were inadequately modeled | Corps modeled background emissions and added project-related figures; mitigated or found not significant | Yes; analysis reasonable; non-truck and I-35 emissions not required to be modeled as significant |
Key Cases Cited
- Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004) (upholds LEDP approach when impacts are minor-to-moderate)
- Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152 (10th Cir. 2002) (duty to rebut presumptions; cost/feasibility considerations in site selection)
- New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683 (10th Cir. 2009) (GAAP-like standard for APA review; highly deferential to agency)
- Prairie Band Potawatomi Nation v. Federal Highway Admin., 684 F.3d 1002 (10th Cir. 2012) (prejudice and procedure under NEPA; need for substantial evidence)
- Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) (NEPA analyses and mitigation measures; agency choosing methodology)