THE FUND FOR ANIMALS, et al.
Plaintiffs,vs.
NO. 6:96-cv-40 MV/DJS THE UNITED STATES OF AMERICA, et al.,
Defendants
THIS MATTER came on for bench trial on January 26, 1996. The following are my findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52 (a).
1. Pursuant to the federal Administrative Procedures Act ("APA"), 5 U.S.C. $ 706(2)(A), Plaintiffs seek injunctive, declaratory, and mandatory relief under the National Environmental Policy Act ("NEPA"), 42 U.S.C. $ 4321 et seq.
2. Plaintiffs in this matter include non-profit animal protection organizations, Native American bison and cultural organizations with members from New Mexico's Native American Pueblos. Plaintiffs' asserted interests include meaningful participation and comment under NEPA, concern for both animal welfare and the welfare of the bison at issue here, spiritual and cultural beliefs regarding bison, and a contractual interest in a portion of bison herd at the center of this case.
3. Defendants are responsible for U.S. Army operations and actions, including management of the Fort Wingate Army Depot lands in the State of New Mexico. Footnote 1.
4. By and through several agreements between the State of New Mexico and the Army, The New Mexico Department of Game and Fish established a bison herd at Fort Wingate in 1966 and has managed the herd since then by auctioning bison for food or stock or by transferring them to Native American tribal herds. Footnote 2.
5. In August, 1995, the New Mexico Department of Game and Fish requested access to Fort Wingate and permission to conduct a controlled bison hunt targeting nine older bulls. Defendants granted this request in December, 1995.
6. At the January 12, 1996 hearing of Plaintiffs' Motion For A Temporary Restraining Order in this matter, the parties stipulated that this act of granting permissive access to Fort Wingate constituted federal action, and also that the dispositive issue before this Court is whether that federal action should have been preceded by an environmental analysis under NEPA.
7. Plaintiffs assert that any contemplated federal action invokes NEPA and requires at minimum an environmental analysis which considers the nature and scope of potential environmental consequences of the proposed action.
8. Defendants argue on the other hand that NEPA is only implicated by "major" federal action, and that the action at issue here was merely ministerial. Defendants therefore contend that, although the grant of permissive access constituted federal action, it nevertheless was insufficient to require NEPA's analysis before it was finalized.
9. Accordingly, Defendants have consistently conceded that this federal action involved no consideration whatsoever of its environmental consequences because they believed it was not required.
1. This Court has jurisdiction over the subject matter of Plaintiffs' claim and the parties under 28 U.S.C. $ 1331. Venue is proper under 28 U.S.C. $ 1391.
2. The relief Plaintiffs seek under the APA and NEPA is authorized under 28 U.S.C. $$ 1361 and 2201.
3. The public information purpose of NEPA is well settled. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1000) Footnote 3. Plaintiffs complain, inter alia, about the abrogation of their statutory interests under Nepa in both information and the opportunity to participate and comment regarding the environmental consequences of Defendants' decision to permit the bison hunts at issue here.
Although Defendants do not challenge Plaintiffs' standing to bring this action, I conclude as a matter of law that Plaintiffs, at minimum, have "informational" standing under NEPA sufficient to challenge Defendants federal action at issue here.
4. NEPA requires all federal agencies to "look hard" and consider the environmental impacts of a proposed action before it is approved. 40 C.F.R. $$ 1501.4(b), 1508.9; Sierra Club v. Hodel, 848 F.2d at 1092 Footnote 5. An environmental analysis ("EA") is designed to determine if significant environmental impact exists. Sierra Club v. Hodel, 848 F.2d at 1092. If it does then the agency must prepare an environmental impact statement before taking action; if it does not, the agency may issue a finding of no significant impact ("FONSI "). Id; 40 C.F.R. 1501.4(c), 1501.4(e)
The Tenth Circuit has held that an agency's failure to prepare and environmental assessment constitutes reversible error, and I invoke that precedent in this case. Sierra Club v. Hodel, 848 F.2d at 1093
5. It is well settled both that the initial determination regarding the need for an environmental impact statement lies with the agency, and also that I may review that determination for "reasonableness." Sierra Club v. Hodel, 848 F.2d at 1092; League of Women Voters v. United States Corps of Engineers, 730 F.2d 579, 585 (10th Cir. 1984).
To do so, I must determine whether the agency has "reasonably concluded" that an action will have no significant adverse environmental consequences by making a fully informed and well considered decision. LaFlamne v. Federal Energy Regulatory Commission, 852 F.2d at 398 (9th Cir. 1988). The agency "must supply a convincing statement of reasons why potential effects are insignificant." Id. In this case, the facts show that Defendants admittedly gave no consideration whatsoever to the potential environmental consequences of permitting the bison hunt.
Accordingly, I hold that, in the absence of any consideration, Defendants did not reasonably conclude their action at issue here would have no significant environmental consequences. Therefore, no deference is due their ultimate conclusion that there was no major federal action implicating NEPA in this matter.
6. Moreover, "major federal action" has two components, "major" and "federal." Consequently, the determination whether there is or is not "major federal action" cannot be divorced from consideration of environmental impacts. Sierra Club v. Hodel, 848 F.2d at 1091; 40 C.F.R. $$ 1508.18.
In that light, I must make a preliminary finding analogous to "probable cause" to determine if the action at issue here is sufficiently major in scope to trigger NEPA. Sierra Club v. Hodel, 848 F.2d at 1092. The term "action" refers both to actions and decisions taken by federal agencies, including decisions taken by federal agencies, including decisions to permit another party to take an action affecting the environment. Natural Resources Defense Council, Inc., et al. v. Morton, 388 F. Supp. 829, 834 (D.C.D.C. 1974) (where a single grazing permit sufficed as major federal action) 40 C.F.R. $ 1508.18(b)(4).
In this case, I am persuaded that the facts show the potential for significant impacts to the bison, the depot lands, and related Native American ruins and artifacts, and hence to the quality of human environment. I therefore hold that the permit at issue in the case constitutes a federal action sufficiently major in scope to trigger NEPA analysis procedures.
7. Furthermore, substantial deference is accorded by law to the Council on Environmental Equality ("CEQ") delineation that "major federal action" implicating NEPA includes actions by nonfederal actors with effects that may be major and which are potentially subject to federal control and responsibility. Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). The distinguishing feature of "major federal action" under the CEQ's interpretation has been held to be "ability to exercise discretion over the outcome." Id.
In this case, I conclude that Defendants had obvious discretion over the outcome, made manifest in the plain language of the conditions attached to the grant of permission to conduct the bison hunt (e.g., every hunter accompanied by a State Game and Fish employee, every hunter required to sign a release, certain areas of the depot not open to hunting, etc.).
I therefore hold that Defendant's federal action at issue here constituted a "major federal action" implicating NEPA under CEQ regulations.
8. Finally, I also reject Defendants' argument that the Army's contracts with the New Mexico Department of Game and Fish regarding management of the Fort Wingate bison herd obviate or negate NEPA requirements with regard to this matter.
The question before the Court is whether or not NEPA is implicated by Defendant's action in authorizing the hunt at issue here. Furthermore, the facts establish that no aspect of either Defendant's agreements with the State or their discreet action authorizing the bison hunt were made in accordance with NEPA procedural requirements. Compare League of Women Voters v. United States Corps of Engineers, 730 F.2d at 584 (decisions already made in accordance with NEPA procedures are not reopened).
9. I hold that, under the applicable law set out above, Defendants' failure to prepare an environmental assessment in violation of NEPA requirements constitutes reversible error. Sierra Club v. Hodel, 848 F.2d at 1093.
10. I therefore grant Plaintiffs' request and hereby enjoin Defendants from permitting or taking any other federal action in furtherance of any bison hunt at Fort Wingate Army Depot until Defendants comply with NEPA by preparing an environmental assessment or an environmental impact statement. The Court will retain jurisdiction to determine the adequacy of Defendants' compliance.
11. Because they prevailed in this action, I grant Plaintiffs' request for the costs of this litigation, including reasonable attorney's fees. Plaintiffs shall, within 10 (ten) days, file documentation of the reasonable costs and attorney's fees incurred in bringing about Defendants' compliance with NEPA.
12. Plaintiffs shall, within 10 (ten) days, submit a final Order of Judgment to the Court for this matter that accords with these Findings and Conclusions.
IT IS SO ORDERED.MARTHA VASQUEZ
UNITED STATES DISTRICT JUDGE
1. Fort Wingate was closed as an active Army depot in 1993, and the army employs four caretakers to oversee the facility
2. The most recent is a 1980 agreement, which authorized the hunting of game animals introduced to Fort Wingate by the State of New Mexico, including bison. Under the 1980 agreement, such hunts require proper New Mexico hunting licenses and permits are also subject to the Army's discretion to permit or deny access to Fort Wingate pursuant to considerations of military security and safety. Pursuant to that agreement, the State of New Mexico has held hunts in previous years at Fort Wingate for game animals other than bison.
3. "The sweeping policy goals announced in . . . NEPA are . . . realized through a set of action-forcing' procedures that require that agencies take a hard look' at environmental consequences and provide for broad dissemination of relevant environmental information." See also Sierra Club v. Hodel, 848 F.2d 1088, 1089 (10th Cir. 1988) (NEPA ensures that federal agencies adequately consider the environmental impacts of actions). And see LaFlanme v. Federal Energy Regulatory Commission, 852 F.2d 389, 398 (9th Cir. 1988), (one of NEPA's goals is to facilitate widespread discussion and consideration of the environmental remedies associated with pending actions, thereby augmenting an informed decisionmaking process.)
4. See Colorado Environmental Coalition v. Lujan, 803 F. Supp. 364, 367 (D. Colo. 1992) (injury to "informational interests" has been held to support standing under NEPA).
5. See also Northern Crawfish Frog v. Federal Highway Administration, 858 F. Supp. 1503, 1505 (D. Kan. 1994) (through a set of "action-forcing" procedures, NEPA requires agencies to take a "hard look" at the environmental consequences or proposed actions), and see LaFlanme v. Federal Energy Regulatory Commission, 852 F.2d 389 398 (9th Cir. 1988) NEPA requires that this evaluation take place before a project is approved).