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Keywords

plaintiffjurisdictioncompliance

injunctiontrialappellee

Related Cases

Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 14 ERC 1367, 10 Envtl. L. Rep. 20,243

Facts

The Nebraska Public Power District (NPPD) planned to construct a 345 KV transmission line from Raun, Iowa, to Hoskins, Nebraska, which would cross the Missouri River and run through the Winnebago Indian Reservation. The Tribe was informed of the project in 1977, and in 1978, Iowa Public Service Company applied for a permit from the Corps of Engineers to cross the river. The Corps prepared an environmental assessment, concluding that an environmental impact statement was not necessary due to the lack of significant environmental impacts. The Tribe filed suit in 1979, alleging noncompliance with the National Environmental Policy Act (NEPA).

On July 13, 1978, appellee Iowa Public Service Company (IPS), a joint venturer with NPPD in this project, applied to the Corps for a permit to cross the Missouri River, as required by 33 U.S.C. s 403 (1976) (originally enacted as Rivers and Harbors Appropriation Act of March 3, 1899, ch. 425, s 10, 30 Stat. 1151) (hereinafter section 10). Before granting the permit, the Corps prepared an environmental effect assessment on the impact of the river-crossing portion of the line (approximately 1.25 miles out of 67 miles). The assessment concluded that an environmental impact statement was not required because “(t) here are no significant environmental impacts associated with this project.”

Issue

Did the district court err in holding that the issuance of a permit to cross the Missouri River was not a 'major federal action' under NEPA, and did the Tribe establish a significant possible environmental impact on bald eagles?

The Tribe claims the district court erred in holding that the issuance of a permit to cross the Missouri River by the Army Corps of Engineers (Corps) was not a “major federal action” within the meaning of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. ss 4321 -47 (1976).

Rule

Under NEPA, federal agencies must prepare an environmental impact statement for major federal actions significantly affecting the quality of the human environment. The agency's determination not to prepare an EIS is reviewed for reasonableness, requiring the plaintiff to show that the project could significantly affect the environment.

Section 102(2)(C) of NEPA, 42 U.S.C. s 4332(2)(C) (1976), requires that the relevant federal agency prepare an EIS for “major federal actions significantly affecting the quality of the human environment.”

Analysis

The court determined that the Corps of Engineers' jurisdiction was limited to areas affecting navigable waters, and thus, it was not required to consider the environmental impacts of the entire transmission line. The court found that the Tribe did not raise a substantial environmental issue regarding the potential impact on bald eagles, as the evidence presented did not establish a significant risk to the species from the project.

The trial court ruled that the assessment properly considered only the river-crossing portion of the line, because the scope of the federal permit was limited to this area and the federal government was not funding the project.

Conclusion

The court affirmed the district court's decision, concluding that the Tribe failed to meet its burden of proving a substantial environmental issue and that the Corps acted within its jurisdiction.

Accordingly, we affirm the order of the trial court denying a permanent injunction.

Who won?

Nebraska Public Power District prevailed in the case because the court found that the Tribe did not demonstrate a significant environmental impact and that the Corps' assessment was reasonable.

The court found that the Tribe did not demonstrate a significant environmental impact and that the Corps' assessment was reasonable.

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