Stewart v. Beuchler ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-40156
SHARRON STEWART; HOUSTON AUDUBON SOCIETY; SIERRA CLUB,
Plaintiffs-Appellants,
VERSUS
COL. NICHOLAS J. BUECHLER, ETC., ET AL,
Defendants,
COL. NICHOLAS J. BUECHLER, District Engineer; UNITED STATES CORPS
OF ENGINEERS; GREGORY R. DAHLBERG, Acting Secretary, Department of
the Army,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas, Galveston
(G-96-CV-282)
March 20, 2002
Before DUHÉ, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:1
This appeal inquires into the sufficiency of the United States
Army Corps of Engineers’ analysis of cumulative environmental
impacts of a proposed golf course in Lake Jackson, Texas. In an
earlier summary judgment, the district court remanded the case to
the Corps after reviewing the administrative record, and directed
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the Corps to analyze the cumulative and indirect impacts of
fragmentation of the forest. After the Corps reissued the permit
on remand, plaintiffs re-challenged its cumulative-impact analysis
in court. The district court on summary judgment found the Corps
had complied with NEPA,2 and plaintiffs appeal. Specifically at
issue is whether the Corps adequately completed steps four and five
of the cumulative-impacts analysis enumerated in Fritiofson3 after
the district court’s remand. For the following reasons, we affirm.
I.
We review the district court’s summary judgment decision de
novo, applying the same standard of review of the Corps’ action as
the district court. Sabine River Auth. v. United States Dep’t of
Interior, 951 F.2d 669, 679 (5th Cir.), cert. denied, 506 U.S. 823(1992). We review the materials under a highly deferential
2
The National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.
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Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985),
articulates five mandatory considerations in “a meaningful
cumulative-effects study”: 1) the area in which effects of the
proposed project will be felt; 2) the impacts expected in that area
from the project; (3) other actions--past, proposed, and reasonably
foreseeable--that have had or are expected to have impacts in the
area; (4) the impacts or expected impacts from these other actions;
and (5) the overall impact expected if the individual impacts
accumulate. Id. at 1245. Fritiofson notes that regulations
“clearly mandate consideration of the impacts from actions that are
not yet proposals and from actions--past, present, or future--that
are not themselves subject to the requirements of NEPA.” Id. at
1243. As explained in Sabine River Auth. v. United States Dep’t of
Interior, 951 F.2d 669, 677 (5th Cir.), cert. denied, 506 U.S. 823(1992), although this Court has abandoned the “reasonableness”
standard of review employed in Fritiofson, its holdings regarding
the Corps’ duties in a cumulative-impact analysis remain in effect.
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standard, to determine only whether the agency’s conclusions were
“arbitrary and capricious.” Id. at 678, 679; 5 U.S.C. § 706(2)(A);
Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 376 (1989).
II.
The summary judgment evidence establishes that the Corps
gathered data to supplement the Environmental Assessment (EA) to
address the concerns raised in the remand order. The Corps engaged
a consulting firm which provided an extensive supplemental study of
direct, indirect, and cumulative impacts. The assessment
considered the historical extent and decline of woodlands in a
four-county area, fragmentation of the forest in that area,
forested acreage protected from further development such as
Wilderness Park and land donated by DOW Chemical, and the
importance of diverse forested areas near the Gulf Coast to
neotropical bird migration. See 2 Supp. Admin. R. 869-916. The
assessment further took into account a 1995 Gulf Coast
Observatory’s Project Report, created as part of a joint
conservation effort, classifying and evaluating bottomland habitats
in the affected area since establishment of the base line in 1979,
as well as the fact that deforestation occurred before 1979. It
reviewed information about bird migration and habits along the
entire Gulf Coast, including doppler radar images, and considered
all species using the Columbia bottomlands generally (as well as
specifically the proposed site).
After a preliminary Finding of No Significant Impact (FONSI)
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based on the supplemental assessment after remand, the Corps
(Galveston District) asked an independent Corps biologist, Wayne
Lea (Fort Worth District), to reevaluate its findings anew. Lea
opined that the golf course would continue to provide usable
habitat for bird migrations, found thousands of acres of forest
remaining, and agreed with the FONSI. Id. at 1012, 1032-37.
The Corps finally determined,
Cumulatively, this project does not represent a
significant loss of the existing bottomland forest
resource, particularly in light of the preservation of
almost half of this particular tract and the on-going
attempt to preserve 70,000 acres of this forest. It does
not represent a significant fragmentation of the existing
bottomland hardwood resources, nor is it significant when
added to past losses.
Id. at 1042. Accordingly, the Corps reaffirmed its earlier
decision to issue the permit in another FONSI and a finding that
preparation of an Environmental Impact Statement was not warranted.
III.
After de novo review of the administrative record, we hold the
Corps adequately considered the evidence relative to steps four and
five of the Fritiofson test. On this record, we cannot say that
the Corps’ analysis or decision making was arbitrary or capricious.
The judgment of the district court is in all respects
AFFIRMED.
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