Louisiana Wildlife Federation, Inc. v. Dennis J. York, Colonel

freedoms, judgment Rubin, Judge, first amendment Alvin B. Circuit con- court is district affirmed. part curred in part and dissented in opinion. AFFIRMED. FEDERATION,

LOUISIANA WILDLIFE

INC., al., Plaintiffs-Appellants, et Colonel, al., YORK,

Dennis J. et

Defendants-Appellees.

No. 84-4699. Appeals,

United States Court of

Fifth Circuit.

May

oppose the construction of the Island (the Area Levee Project), a federal flood control to abate backwater flooding in a acre area Catahoula Parish, Louisiana, without an additional Impact (EIS) Environmental Statement supplement Corps’ As EIS. to the permits, six agree individual we with the district court that the properly fol- lowed both the National Environmental (NEPA), Policy Act and the Environmental Agency’s Protection regulatory guidelines making its determination. As to the Tripp, City, James T.B. New York Os- Project, however, construction of the we borne, McComiskey Richardson-Harp, & give adequate hold that the failed to Osborne, Orleans, La., Jerry Michael New question consideration to the of whether Jackson, D.C., Washington, plaintiffs- for the 1981 be revised in of appellants. our decision in Consequent- III.1 Cook, ly, Yancey, King part we vacate that Galloway, & F. of the district Lee, Jr., La., Shreveport, Drake for Tensas opinion court’s which dealt with this issue Delta, et al. and remand to the district court for the purposes requiring of perform to Benson, Woodward,

Milling, Hillyer, Pi- adequate analysis of supple- whether a Miller, Joseph Jr., LeBlanc, erson & E. required. mental EIS is Stephen Carleton, Orleans, La., C. New Planting. Westbank opinion efficiently district court dis- Habicht, Henry II, Gen., F. Atty. Asst. tilled a voluminous record and described in Div., Dept, Land & Nat. Resources U.S. of detail both the nature of the Island Justice, Jacques Gelin, Shilton, B. David C. physical and the characteristics of D.C., Washington, for federal defendants. by permit appli- six tracts affected Jr., Provosty, Alexandria, La., Ledoux R. We, therefore, cations.2 attempt do not for other parties. interested repeat background the factual of this case.

I. permits granted by The six agricultural authorize the conversion of GOLDBERG, RUBIN, HILL, Before 5200 acres of For wetlands. Judges. Circuit protection purposes, such wetlands are de- PER CURIAM: “special aquatic nominated sites.”3 Both Agency’s the Environmental Protection organizations Six environmental object to Corps Engineers’ reg- Guidelines and the Army Corps the issuance the U.S. special aquatic ulations treat all sites as Engineers permits of six individual allow- worthy protection, of extra and state as ing private landowners to clear and convert agriculture guiding principle degrada- approximately 5200 acres of ... “[t]he They bottomland hardwood special wetlands. also tion or destruction of sites Avoyelles Sportsmen’s League, 3. See 40 C.F.R. 230.41 York, 2. Louisiana Federation v. Wildlife (W.D.La.1984). F.Supp. 518 being, loss of

represent soybean production an irreversible valuable “to increase aquatic resources.”4 to increase net return on assets owned company.”9 undisputed It is soy- heightened solicitude for wetlands Such production is dependent a non-water bean regulations stating is manifest in the above, activity. As shown this fact “neces- considerations that must be taken into ac- persuasive showing a more than sitate[s] evaluating count when altera- concerning otherwise the lack alterna- acreage. a dis- tion to wetlands When tives.” charge dredged pro- or fill material is posed, prohibit Guidelines is- protection organ The environmental permit “practicable of a if there is a suance argue appeal applicants izations that the less alternative that would have adverse required showing, failed make the ecosystem____”5 aquatic A Corps erroneously granted them turn, alternative,” “practicable is defined permits by interpreting “practicable alter is, capable as one that “available and “profit-maximizing natives” to mean alter being taking done after into consideration addition, they natives.” In contend that cost, existing technology, logistics in viewing the erred in the alternatives project purposes.”6 of overall With applicants’ the objectives with in in mind wetlands, however, respect the Guide- eye stead of towards environmen specify: lines arguments tal maintenance. Both must be [wjhere activity the associated with a rejected. discharge proposed special for a which The first simply contention is not borne aquatic require does site ... not access by nothing out the record. There is in the proximity siting spe- or the within Corps’ reports profit-maximi- to show that question aquatic cial site to fulfill the consideration, zation was a let alone the (i.e. purpose depend- basic is not ‘water primary in the analy- factor alternatives ent’), practicable that do alternatives sis.11 The did view economic special aquatic pre- involve sites are alternatives, feasibility permissible a cri- available, clearly sumed to be unless terion under both Environmental Pro- demonstrated otherwise.7 Agency’s tection Guidelines and the stated “Thus, guidelines couple general pre- objectives permit applicants. How- sumption against discharges aquat- all into ever, granting applica- several of ecosystems specific presumption ic with a tions, the alternative selected practicable alternatives to the fill of applicant did not allow the to clear the wetlands exist.” (the profit-maximizing position) entire tract Instead, originally requested. as it had permit-application each of the six proceedings, Corps carefully clearing characterized the limited the allowed applicant’s purpose project permits for the so basic as under the as to forbid land 1381, 230.1(d); 320.4(b)(1) (E.D.Va.1983) (finding Id. also § § see 33 C.F.R. of water de- 4. prerequisite pendency is not a to fill under the Act, Clean Air but is factor to consider in 230.10(a) (1984). § 5. 40 C.F.R. application process). 230.10(a)(2). 6. Id. See, e.g., Plaintiffs’ Exhibit “Tensas Delta 230.10(a)(3). Id. § Company Discharge Land Evaluation of the Dredged Compliance Material with Section Marsh, (D.Mass. Hough F.Supp. v. 1; 404(b)(1) Guidelines” at Plaintiffs’ Exhibit 1982). [Bayou "Revised Environmental Assessment ... See, e.g., Plaintiffs’ Exhibit "Tensas Delta 20-21, 23-25; at Plaintiffs’ Exhibit Macon]” Discharge Company Land Dredged Evaluation of the [Bayou “Revised Environmental Assessment ... Compliance with Section Material 13, 15-17; at Plaintiffs’ Exhibit "Re- Louis]” 404(b)(1) Guidelines” at 1. vised Environmental Assessment ... [Duck at 15-17. Creek]” Marsh, Hough F.Supp. supra, Hudson, F.Supp. Ltd. v. Atlantic Cf. elevations, Edgartown, certain residents of clearance below zones challenged Corps permit maintenance of uncleared buffer on Massachusetts tracts, traversing the authorizing filling each side of streams of a coastal tract to require turnrows to be seeded and main- private construct two homes and a tennis grass, tained in suitable and mandate the Engineer court. District had found Management application of the Best Prac- depend- “water required by Department the Louisiana ent,” tices requisite and undertook the examina- corps of Natural Resources.12 The thus “practica- tion to discover the existence of reduced chose alternatives that both Engineer ble alternatives.” The defined applicants’ profit and the economic efficien- “provid- purpose the basic as operations in cy of their order to ing two homes and a tennis court.” Al- preserve other environmental values. though court remanded for district clearly landowners to demonstrate more protection organ The environmental practicable pro- that no alternatives to the contention, izations’ second that the alter existed, posed ques- fill the court did not appli natives not be viewed with the Engineer’s tion the formulation of the mind, objectives in is not substantiat cant’s project’s objective, suggest and did not applicable ed either case law or not considered alternatives were regulations. recog As the district court proper perspective.17 nized, to the the Preamble Guidelines states, implicit "... consider [w]e findings The district court’s practicable, capa be an alternative be analyzed properly permit ap all six achieving purpose ble of the best of the plications correctly grant and decided to turn, proposed activity.”13 In the text of permission agri to clear the tracts for provides the Guidelines that an alternative amply supported by cultural use is practicable capable is if it is and available Nothing record. in it convinces us that the being taking done after into account Corps’ arbitrary, capricious, actions were costs, existing technology logistics and law, not in accordance otherwise with project purposes.14 of the overall .Un by the sole standards which we review Guidelines, therefore, only der these not such actions.18 permissible for the to consider the applicant’s objective; duty has a objectives

to take into account the II. applicant’s Indeed, project.15 it would be Project The Island Levee is a ignore bizarre if the were to federally agricultural funded flood control purpose applicant for which the seeks a drainage plan designed and to reduce the permit purpose and to substitute a it deems frequency and duration backwater flood more suitable. 75,000 ing throughout project acre area law, although sparse, by

The case is in the use of backwater levees and other ac- drainage cord our In Hough conclusion. works. See, e.g., achieving goals Plaintiffs’ Exhibit harm while still to be ac- "Revised Envi- action). complished by ronmental Assessment ... Delta Land [Tensas 16-17; Company]’’ at "Re- Plaintiffs’ Exhibit [Bayou vised Environmental Assessment ... F.Supp. at 83. at 15-16. Louis]” 17. Id. at 83-84. See Roosevelt Campobello Inter-

13. Fed.Reg. See Louisiana Wildlife national Park Commission v. United States Envi- York, F.Supp. Federation v. Agency, Protection ronmental (1st Cir.1982). Shoreline Associates v. Cf. 230.10(a)(2) (1984). 14. See C.F.R. Marsh, (D.Md.1983), F.Supp. aff’d, (4th Cir.1984). F.2d 677 Council, 15. See South Louisiana Environmental Sand, (5th Cir.1980) Inc. v. F.2d League, Avoyelles Sportsmen’s (NEPA requires a discussion of alternatives to a project reduce environmental which would Corps’ The final EIS on was lished this determination and referred the pro- The submitted matter to the Council on Environmental argue organizations tection that the Envi- Quality.23 There is an indication that the Agency per- failed to ronmental Protection Agency thought the draft was “inade- imposed mandatory duty form a quate,” finding but such a obviously Air Act19 Clean to review comment on the same as “unsatisfactory,” and did not this final EIS. The district court did not require any further EPA action. The EPA opinion, address claim in its this but was fully had reviewed the environmental im- plaintiffs’ asserted amended com- pact the levee and the plaint, properly and is before us.20 Agency’s silence on the statement’s subse-

The EPA did comment on a 1978 draft quent incorporation into a revised doc- EIS, the final form of which was released concerning ument same should protection in 1979. The environmental or- showing be construed as Agency’s con- ganizations challenge sufficiency do not approval.24 tinued EIS, they of this nor do contend that the Agency’s Environmental Protection com- III. inadequate ments were or did not fulfill Finally, protection the environmental or- statutory purpose. Instead, their they as- ganizations contend that the erred in Agency sert that the should have reviewed submitting EIS on the EIS, on the 1981 commented revised Project. objection To understand this concerning which included data the estab- Project, briefly we must describe the lishment of the Tensas National Wildlife preparatory performed by work Refuge. specifically adopted The 1981 EIS on the final as well as the Avoyelles prior EIS statement of the environmen- litigation25 which acreage concerned sim- project.21 tal of the levee The issue ilar to that affected narrows, therefore, the EPA whether required to review the 1981 EIS after final EIS on the noted already it had commented on the 1978 EIS. involved, 21,100 acres n forests, acres are bottomland hardwood The answer must be no. There is no these, 1,357 and of acres are classified indication as that the Environmental Protec- Corps surveyed wetlands. The proper- Agency tion found the 1978 draft EIS to be 21,100acres, ty owners of the “unsatisfactory standpoint from the and discover- 82%, public 17,300 acres, health or welfare or environmental ed that or would be had, If quality.”22 pub- it would have cleared even were not under- 7609(a) York, provides 19. 42 U.S.C. as follows: 21. Louisiana Federation v. Wildlife F.Supp. 603 The Administrator shall review and comment writing in any on the environmental relating responsibil- matter to duties and 7609(b). 22. 42 U.S.C. § granted pursuant chapter ities provisions tor, to this or other authority of the of the Administra- Id. (1) any legislation proposed contained in (2) by any department agency, Federal or Feed, Bergland, 24. See Hiatt & Grain Inc. v. newly projects authorized Federal for con- (D.Kan.1978), F.Supp. aff’d, 602 F.2d any major agency and Federal struction ac- (10th Cir.1979), denied, cert. 444 U.S. (other construction) tion than a for to (1980); 100 S.Ct. 62 L.Ed.2d 755 National 4332(2)(C) applies, which section of this title Butz, Group Forest Preservation (3) regulations published by proposed (9th Cir.1973). agency any department or of the Federal Such comment shall be Government. written Marsh, Avoyelles Sportsmen’s League, Inc. v. public made at the conclusion of such (W.D.La.1979) I); F.Supp. (Avoyelles review. Alexander, Avoyelles Sportsmen’s League, Inc. v. Hotel, Holiday 20. See Domed Stadium (W.D.La.1981) II); F.Supp. (Avoyelles Inns, Inc., (5th Cir.1984); fn. 7 732 F.2d Avoyelles Sportsmen’s League, Inc. v. Society Equitable Bliss v. Assurance Unit- Life (5th Cir.1983) III). (Avoyelles F.2d 897 States, ed assumption The initial survey, of this cess. taken.26 On the basis impact on that no adverse concluded of the forested acres would be cleared 82% 17,- ecological therefore, functional values regardless project, is no to the 300 acres could be attributed tenable, longer as is now able to property agri- to of this because conversion how much land can be cleared. “control” dependent any way in culture was not They urge find court us to that the district holding erred was required supplement to its 1981 final EIS in litigation concerned the Avoyelles The Avoyelles of the decision in III. approxi- contained Long Lake Tract which Parish, Avoyelles mately acres had decided that Louisiana. The owners A. use, put agricultural the land could be specific statutory requirement No or- program of begun large-scale and had supplementation dains the of an EIS. The halted, program was deforestation. This however, Corps’ regulations, dictate that however, Corps pend- first order of the Supplement to the draft or final EIS “[a] determination, and then ing a wetlands prepared signifi- on file will be whenever in- seeking declaratory and a citizens’ suit impacts resulting changes cant

junctive against relief the owners’ land- proposed plan or significant new im- clearing activities. pact information, criteria or circumstanc- trial, After a the district court bifurcated es relevant to environmental considerations ninety percent of the Lake held that over plan pro- impact on the recommended or wetlands,27 per- that a Long Tract was action____”31 posed Similarly, the Coun- required for the mit from the was Quality’s regulations cil on Environment acreage.28 landclearing activities on that agency supplement an EIS if: appeal, agreed Fifth that a On Circuit (i) Agency makes substantial clearing private landowner’s of wetlands changes proposed in the that are action agricultural subject permit use is to the concerns; relevant to environmental Engineers requirements of the (ii) There are new circum- 404 of the Act.29 under Section Clean Water stances or information relevant envi- The district court’s wetlands determination bearing ronmental concerns and aside, however, and the Environ- was set impacts.32 or its action Agency’s mental Protection determination was reinstated.30 The district court held under these regulations, “[t]he protection organiza- The environmental ‘significant not a new circumstance or argue tions in this case that the 1981 final required prepara- which information’ is insufficient not dis- because did an additional tion of EIS” because “[n]o close or assess the environmental new scientific or technical information was acreage of the associated with the loss indicated that revealed which cleared if the assumed would be might have environmental effects which They were not undertaken. con- analyzed original differed from those tend, correctly, Avoyelles that the effect of effect, opinion In because the con- subject acreage require- to the EIS.”33 III is to this explicitly environ- Corps’ permit application pro- tained no data ments of Statement, Impact 30. Id. at 917-918. 26. Final Environmental Control, Mississippi Flood River and Tributaries Basin, Red Backwater Area (1984) Tensas River 230.11(b) (emphasis add- 31. 33 C.F.R. Island, Louisiana, 1981). (September, at 5-6 ed). II, Avoyelles supra, F.Supp. at 291. 27. 2502.9(c)(1) (1984). 40 C.F.R. § 32. I, Avoyelles supra, F.Supp. at 531-35. York, supra, Louisiana Federation v. Wildlife F.Supp. III, 715 F.2d at 920-22. mental, the district court found that there cient to agency supplement an original point requiring supple- no a an EIS.40 would be merely mental EIS that would “overlook B. panorama.”34 the same environmental reject Because we the district court’s unduly This is an inter restrictive conclusion that Avoyelles III was not the pretation Corps’ regulations. of the As of new kind information that could war- recently explained by the Seventh Circuit in EIS, supplemental rant a we turn to the principal Weinberger;35 Wisconsin v. “The question of whether Avoyelles III does in agency factor an should consider in exercis supplemental fact warrant a EIS. We hold ing supplement its discretion whether to supple- not to file a existing of EIS because new information is unreasonable, mental EIS was since the the extent to which the new information plaintiffs raised a substantial environmen- presents picture likely a of the environmen concerning tal issue approximately 40% consequences pro tal associated with the the forested areas within the area. posed original action not envisioned Although need necessarily EIS.”36 The issue is not whether new prepare EIS, supplemental a it must recon- directly information is environmental but assumption sider its that these acres will whether, nature, whatever its it “raises regardless be cleared If the gravity new concerns of sufficient such Corps determines that there is a reasonable another, in-depth formal look at the possibility significant that a number consequences pro environmental these acres except will not be cleared is, posed necessary.”37 action is That the Project, and that therefore the “provides seriously whether a different may significant additional picture of the landscape EIS, considered in the final then the such that another hard look is neces prepare EIS. sary.” determining supple whether a inquiry The focus of the is not limit required, legal mental EIS is standard solely ed to the scientific or technical essentially the same as the standard for aspects Instead, of the new information. determining the original need for an EIS.41 the new information must be evaluated If, circumstances, as a result of new likely terms of the environmental conse project may “significant” impact have a quences subsequent that follow from the upon the environment that was not con data. Even if the new information is not original sidered in the supple then a therefore, technological, “presents required.42 mental EIS is “It is the initial seriously picture different of the environ responsibility apply this proposed project mental sup standard and decide whether or not a envisioned,”39 previously what was plemental necessary. it is If party EIS is new information and is suffi- challenges affected that decision it in Id. L.Ed.2d 462 But Conservation Law cf. England, Foundation New Inc. v. General Ser- Administration, (1st 35. 745 F.2d 412 vices 707 F.2d 626 Cir. 1983). Id. at 418. 41. Environmental Fund v. 983, Id. 37. F.2d 991 Wisconsin v. Cf. 412, (7th Cir.1984) Weinberger, 745 F.2d 417 Gribble, (emphasis original). Springs 38. Id. in the Warm Dam Task Force v. 621 1017, (9th Cir.1980); F.2d 1024 Monarch Chemi- Works, 1083, Thone, cal Inc. 604 F.2d 1087 Id. at 421. (8th 1979). Cir. Council, But see Natural Resources Defense York, (2d Cir.), Marsh, City Inc. v. New 672 F.2d 292 42. Environmental Fund v. Defense 920, dismissed, 1963, cert. 456 U.S. 102 S.Ct. 72 F.2d at It reasoned that since the be and raises a ‘substantial environmen- area would court up- reviewing court should anyway, Project tal cleared would issue/ only if it is rea- agency’s hold the any impacts. cause additional adverse sonable, rather than use the deferential III, however, Avoyelles As a result of standard.”43 ‘substantial evidence’ 17,300 might these of forestland acres although the Under III, Avoyelles be cleared. Under the land deciding responsibility has initial only cleared if be clear- necessary, a supplemental whether a EIS is requirements ances meet the of the Section challenging decision not to party permit process.47 has never supplemental has two burdens: file a whether, even claimed to have considered First, it must raise a “substantial environ III, qualifies under the land NEPA does not mental issue.”44 clearance. Since it has never been deter- import agency that an consider the planned mined whether or not the clearanc- circumstance, small. In or new however 404, requirements es do meet the of Section EIS, der to warrant a open question it is an this land whether will “present a serious new circumstance actually If be cleared. the land is not ly picture different of the environmental cleared, open question then it is also an impact proposed project from what Project whether or not the will have ad- Second, the previously envisioned.”45 far, impacts on the area. Thus verse respect plaintiff must show taking any has avoided look at all at issue, this substantial environmental area, impacts on this let reasonably. “The stan Corps did not act alone a hard look. judicial agen dard of review whether cy develop impact state decision not to In order to raise a envi substantial objectively ment and made is reasonable issue, party need not ronmental show good and in faith on a environ reviewable signifi proposed project that the will If mental record. the decision is reason cant adverse has able, ‘the determination must be only not considered. It must show ”46 upheld.’ impacts. such may have “[I]f view, protection In our the environmental project may finds that the cause a court n organizations met both of these burdens. significant degradation of some human en First, they raised a substantial environmen- ..., vironmental factor the court should concerning issue the effect of the tal filing require of an statement Project on acres of bottomland hard- grant equitable other relief as it ... such original forests. In its wood appropriate.”48 deems Corps did not consider the environmental occasion, previous On a we noted Project on this area impacts of the because “significant” is “a chameleon-like word it assumed that the land would be cleared meaning not undertaken. that takes its functional from its even were 43. Id. 269, Club, (1980)), (citing quoted 66 L.Ed.2d 130 Hiram Clarke Civil Inc. v. S.Ct. (5th Cir.1973); Owners, Lynn, Property 476 F.2d 424-25 Save Vieux Carre Residents & Asso- Pierce, ciates, (5th Kreger, 472 F.2d 466-67 Cir. Our Ten Acres v. Inc. v. 719 F.2d (5th Cir.1973)). 1983). Gas & Electric Co. v. See also Baltimore Council, Inc., Natural Resources 87, 98, 2246, 2253, S.Ct. 76 L.Ed.2d 437 U.S. Id. 45. Wisconsin v. Weinberger, supra, at 745 F.2d 47. 715 F.2d at 920-22. 48. Save Our Ten Acres v. 46. Save Our Sands, Wetlands, Kreger, 472 F.2d F.2d (5th Cir.1973) added). (5th Cir.1983) (emphasis Bay, See (quoting 466-67 Save the Lee, (5th Corps Engineers, also Louisiana v. Inc. v. United States 1985). (5th Cir.), denied, U.S. Cir. cert. Here, context.”49 we have no may doubt that land regardless not be cleared of what 17,300 potential Project the effect of the on the landowners desire. “significant.” acres of forest This area Avoyelles III, therefore, is clearly rele- constitutes of the total amount of for- 82% accuracy vant to the Corps’ of the assump- Project. est affected the Although tion that question the land in will be 9,000

there was evidence the record that regardless cleared Project. the Despite cleared, of these acres already have been this, the Corps did not undertake re- 8,000 only even if acres of uncleared forest evaluation assumption. of its Instead, it remain, this is still more than twice the merely claimed that Avoyelles III was not number of acres of forest that were the the kind of new information that could subject Corps’ original of the EIS. Since supplemental warrant a EIS. Given the Corps potential believed that the im- relevance of Avoyelles III to question 3,800 pacts Project of the acres of forest 17,300 of whether the cleared, acres will be were sufficient to warrant an we as- Corps’ failure to consider the effect of sume potential impact of the that decision was unreasonable. 8,000 Project on additional acres of forest Finally, we consider remedy what is sufficient supplemental warrant a appropriate light unrea EIS.50 sonable action. We hold that while the Second, we find that the environmental Corps need not necessarily prepare sup protection organizations only not met their plemental EIS, it must at least reconsider raising burden of a substantial environmen- 17,300 its assumption that the acres will be issue; they tal also demonstrated that the regardless cleared Project. If the Corps acted unreasonably respect to Corps is to adhere to this assumption, it that issue. The Corps did not consider the must show permits that Section 404 will be Project 17,300 of the on the acres of granted to 17,300 clear most or all of the question forest in because it assumed that If, acres. hand, on the other this land would regardless be cleared determines that there is a possi reasonable It assumption based this on a bility significant that a amount of land will survey of landowners project within the not permits, receive Section 404 and that area 17,- which showed that the owners of Project may land, adversely affect this 300 acres of planned forested land to clear then the prepare a supplemen their land even if the was not un- tal EIS to consider the effects of the dertaken. Project on the uncleared land.51 At this III,

As a however, result of Avoyelles stage, we do order supplemental this basis has been undermined. Under question because the of whether III, Avoyelles question the land in Project might cannot have adverse im simply be cleared if the pacts landowners want open acres is still an to. If the far, clearances do not meet one.52 Thus has not ana requirements of Section then lyzed this Avoyelles issue III. Marsh, supra, 49. Environmental Fund v. exactly many We do not decide here how Defense 651 F.2d at 992. "significant” uncleared acres are and therefore supplemental warrant a EIS. This is a determi- view, Judge sight In our Rubin’s dissent loses nation that the should make in the first through of the hardwood forest the trees. We instance. think it self-evident that since III arti- legal requirements governing culated new respect, present In this case differs from area, large part clearance of a Marsh, supra, Environmental Fund v. there is a reasonable likelihood that the prepare where the court ordered the significant, have unconsidered effects. "immediately" EIS. 651 F.2d at spirit aborning "The would die [NEPA] if a case, present facile, unlike the parte ex decision that the ... did plaintiffs "specific expert testimony offered significantly affect the environment were evidence, defendants, other unanswered impartial too well shielded from review.” Save prove changes Kreger, Our Ten Acres that all of the ... will 1054 prove by a plaintiff must plaintiff.1 The Corps for further remanding to the

In principle that those consideration, reaffirm the of the evidence preponderance we of bare than a tissue an EIS is more in its favor are that to a decision facts essential play a assumption is to assumptions. If an If the true than not true. likely more to be must, EIS, very it at role in an critical fact, of persuade the trier plaintiff fails to least, Corps The cannot be well-founded. any plaintiff simply fails to adduce or if the by simply of NEPA the strictures avoid issue, plaintiff essential on an evidence problems. away potential assuming must lose. carried its burden and has not IN PART AND VACATED AFFIRMED proof on the of rests The same burden AND REMANDED. IN PART litigation. Re- in plaintiff Lee,2 we cently, Louisiana v. State of RUBIN, Judge, con- Circuit B. ALVIN principle plaintiff that a who restated the part. dissenting in curring part agency’s prepare challenges an failure my of col- respect for the views With persua- of an EIS bears burden initial decision to leagues, I dissent from their that and clarified the standard sion adequate perform an “to plaintiff must meet.3 Prior to our supplemental EIS of analysis whether Lee, language of our decisions was opinion. Like Part IIIB of required,” Now, pellucid.4 neither consistent nor decision must be based an a court’s however, plaintiffs must it is clear that the assumptions. A tissue of more than a unreasonable prove “that the principles avoid the basic court can neither possi- concluding there was no reasonable proof nor become a factfinder of burden of signif- bility action would allegations converting alchemy of degrade any environmental fac- icantly is devoid of evi- into evidence. The record 5 tor.” any support for provide dence would adequacy challenging of failed In an action proposition EIS, therefore, plaintiffs when are re- Avoyelles III into account take an important, More even prepared EIS. is inade- quired to that the EIS establish into Avoyelles III did not take allegation an of deficien- quate. More than account, to adduce plaintiffs failed plaintiffs prove necessary; the cies is that, had the tending to show evidence complaint their allegations of the essential so, likely or would Corps done should of the evidence.6 by preponderance result. reached a different employs, circuits law from other case analysis used in part, the same the most per- litigation,

In the burden all civil the Fifth Circuit.7 on each essential issue rests suasion 463, (5th sig- Kreger, Cir. quite v. 472 F.2d 466-67 Acres that are new environmental nificant, 1973). qualitative quantitative in either ordering different relief terms.” Id. at 996. added), principle Lee, (emphasis "[t]he we follow the F.2d at 1085 particu- Kreger, citing to fit each 472 F.2d court should tailor its relief Save Our Ten Acres v. (5th Cir.1973). lar case.” Id. at 1006. Hazard, § Civil Procedure 7.6 1. F. James and G. 813, Morton, (5th F.2d Club v. Sierra 1985). (3d Wigmore on Evidence ed. See 9 43, 1975); Lynn, Club v. 502 F.2d Cir. Sierra 1981). (Chadbourn rev. denied, (5th Cir.1974), S.Ct. cert. 421 U.S. (1975); Sierra Club v. 44 L.Ed.2d 484 F.2d 1081 2. 758 (5th Cir.1974); Callaway, En 499 F.2d Fund, Engi v. Inc. vironmental Id. at 1084. (5th Army, 492 F.2d 1130-31 neers U.S. Cir.1974). Owners, See, e.g., Property Resi- Vieux Carre Associates, Pierce, 719 F.2d dents & discussing process Examples (5th Cir.1983); of cases Image Anto- Greater San agency’s Brown, (5th challenging deci- nio, proof an in actions Texas v. Club, prepare initial EIS are Lower 1978); Lynn, sion Hiram Clarke Civic Inc. Cir. Cir.1973); Alloways Township Service Elec. (5th Creek v. Public Ten Save Our Similarly, plaintiff My who contends that a brethren assert that Corps has “[t]he agency improperly prepare failed to federal never even claimed to have considered the supplemental EIS bears burden of whether, III, under Avoyelles qua- the land proving changes that the that occurred af lifies for Although clearance.” literally ac- prepared ter the EIS was “will have a curate, appear this does not to fully me to ‘significant’ impact upon the environment” Corps’ the position: brief, state in its the 8 by that was not covered EIS. In the En Corps states Engineer that District “[t]he Marsh,9 vironmental v. af Fund Defense found, impliedly, the Avoyelles that deci- stating precept, this ter found that the we new, did sion not result in previously unan- plaintiffs had satisfied their burden of alyzed, significant impacts on the environ- “specific proof they expert because cited ment from project.” the evidence, testimony and other unanswered To debate whether or not the has defendants, prove the to that all of the proved part that significant of Project the changes ... will have new environmental area will be if Project cleared the even quite that are in does significant, either however, proceed, not is qualitative quantitative point. or terms.”10 beside the It is not the burden the prove of to in organizations The environmental this cleared, how much land will be nor it does expert not single opinion case did adduce a the burden establishing bear of that testimony single or the of a witness that Project will not have environ- impact of Avoyelles III would have impact. mental It is the burden of the significant. been The district court made evidence, plaintiffs to adduce merely finding to subject. no on the All we know is allegations 21,100 make rest Project assumptions, or to that involves acres of forests, establishing bottomland hardwood and was unreason- survey owners, property of in reaching made able the conclusion it did and decided, before III was found that there was in possibil- fact reasonable 82%, 17,300 acres, or would be cleared ity that application of Avoyelles III if the even were undertaken. change significantly would the conclusions fact, plaintiffs in argu- oral conceded reached in the EIS. 8,000 already ment that acres have The Area Island Levee has facts, cleared. been Based on these few planned been since 1975. The sub- my plaintiffs brethren “the find 1978, mitted a draft which it revised raised substantial environmental issues released in The EIS was com- concerning approximately 40% for- pleted and submitted This suit ested within areas area.” This began Now, in 1983. It tried in “finding” presumably solely based 1985, we in question effect remand the plaintiffs’ mere allegations and mathemati- Project’s of computations deducting cal made Corps. The conclude that a Corps’ original figures acreage ad- prepared, EIS should be itor already mittedly I doubt cleared. as may conclude is necessary, that none it court, appellate we make should such may decide fact, modify to abandon or to findings of and am certain that an allegation project. Any alone is not sufficient basis conclusion reaches will be so. subject us to do to further attack. This is not a Co., 732, 743, (3d 1876, Cir.1982) (1978); & Gas F.2d S.Ct. 56 L.Ed.2d Sierra Club v. Froehlke, Winnebago (8th Ray, Cir.1976). Tribe v. Nebraska 534 F.2d (8th denied, Cir.), F.2d cert. 449 U.S. S.Ct. 66 L.Ed.2d 43 Exam Fund 8. Environmental v. opinions ples discussing allocation of proof opposing adequacy burden in suits County Cir.1981). (5th of an initial EIS include Monroe Conser 9. 651 F.2d 983 Council, Adams, vation (2d Cir.1977), denied, cert. 435 U.S. supplied). (emphasis Id. at should taken unless the course that be America, evidentiary basis

record demonstrates an UNITED STATES It if it Plaintiff-Appellee, action. is not warranted for such rests, does, I on the factual as submit appellate of an court. assumptions BUTTORFF, Gordon S. my The effect of course brethren Defendant-Appellant. cases, likely, pursued follow other No. 83-1368. The has been be disastrous. now years. final planned Appeals, for ten EIS was United States Court Circuit. years ago. four events are Fifth submitted New four-year If span. bound to occur 3, 1985. June “new”, every arguably arguably time an 10, 1985. Rehearing July Denied “significant” occurs, allegedly event allegedly significant new “fact” is dis-

covered, project may, oppose those who suit,

by filing put Corps to the burden datum al- proving either that the has

ready insignifi- it is been considered or that

cant, completed no could ever be opposition determined. preservation of

Dedication to a whole- requires per- nor

some environment neither depart judicial pre-

mits us to from sound

cepts. plaintiffs in this have case that

failed to show evidence duty. They in its

has failed have affirmatively did not

shown Moreover,

consider III. the envi- organizations

ronmental have not adduced decision evidence would short, has on a been shown rest tissue respectfully I

assumptions. submit that plaintiffs’ case mistakes words charges for evidence. facts reasons, respectfully

For I dissent. these

Case Details

Case Name: Louisiana Wildlife Federation, Inc. v. Dennis J. York, Colonel

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 31, 1985

Citation: 761 F.2d 1044

Docket Number: 84-4699

Court Abbreviation: 5th Cir.