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Winnebago Tribe of Neb. v. Ray

Citation: 10 ELR 20243
No. No. 79-1632, 621 F.2d 269/14 ERC 1367/(8th Cir., 03/13/1980)

The Eighth Circuit Court of Appeals affirms a district court's determination that the Corps of Engineers was not required to prepare an environmental impact statement (EIS) prior to issuing a permit under § 10 of the Rivers and Harbors Act allowing construction of a transmission line across the Missouri River. In reviewing defendants' negative determination, the court utilizes a formula involving shifting burdens of proof; if the plaintiff succeeds initially establishing that there is a substantial question as to whether the challenged federal action could result in significant environmental effects, the burden thenfalls upon the defendant to support the reasonableness of the decision not to prepare an EIS. The appellant erroneously contended that the environmental effects resulting from issuance of the § 10 permit should be deemed to include all effects of the entire 67-mile transmission line; in the court's view the Corps properly focused only on the effects of the 1.25-mile segment of the line traversing the river because this is the only aspect of the project in which the agency is involved. As to that particular segment, appellant failed to present evidence showing that it would materially affect the bald eagle population in the area. Appellant's final allegation, that defendants failed to consider alternatives to the action, is dismissed by the court of appeals for failure to raise it below.

Counsel for Appellant
Michael D. Gooch
Intertribal Legal Services
P.O. Box 682, Winnebago NE 68071
(402) 878-2527

Counsel for Appellees
Jerry L. Jackson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

James J. DeMars
Barlow, Johnson, DeMars & Flodman
Century House, P.O. Box 81686, 1201 J. Street, Lincoln NE 68501
(402) 432-0188

Joined by Lay, Chief Judge* and McMillian, J.