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Columbia Basin Land Protection Ass'n v. Schlesinger

Citation: 11 ELR 20537
No. Nos. 78-1526 et al., 643 F.2d 585/15 ERC 2005/(9th Cir., 04/20/1981) Aff'd

The court rejects a number of challenges under the Federal Land Policy and Management Act (FLPMA), and the National Environmental Policy Act (NEPA) to the construction of an electric transmission line by the Bonneville Power Administration (BPA). The court first upholds the adequacy of the environmental impact statement (EIS) prepared for the project, concluding that it reasonably explores the available alternatives and that BPA's failure to employ sophisticated cost-benefit methodologies does not violate NEPA. The EIS adequately describes the secondary impacts of the project, and the fact that it does not include detailed economic data which was available within other documents is insufficient to render the entire EIS legally inadequate. Nor was a separate EIS required for memoranda of understanding between federal agencies exchanging rights-of-way for the project. As to the substantive validity of the decision to go forward with the project, the court finds evidence in the record refuting the claim that the decision to proceed was arbitrary and capricious. Under FLPMA, the court finds that the right-of-way permit issued by the Bureau of Land Management (BLM) to BPA did not violate §§ 503 and 505, which provide that such permits may be issued only after consideration of both state and federal land use and environmental law and policy. It was reasonable for BLM to rely on BPA to consider those factors, and that BPA did so is shown by the EIS. The court also finds that BLM, in issuing a right-of-way permit for the project, properly declined to extend the permit to cover lands in which the United States holds merely a possessory interest. The term "public lands" as used in § 103(e) of FLPMA does not refer to such privately-held lands. The right-of-way permit was also issued consistently with § 505, which mandates compliance with environmental and public health standards promulgated by the states. Under this provision a federal agency must comply with the substantive requirements of state laws, but it need not follow the usual certification and permitting procedures other than to submit pertinent data to the permitting authority. Finally, the court reverses the district court's ruling that BPA was required to obtain a right-of-way permit not only from BLM, but from the Bureau of Reclamation as well.

One member of the panel dissents on the ground that the EIS for the project was fatally defective due to the absence from the document of economic analyses, which were critical to the decision reached by the agency.

Counsel for Appellants
Dale L. Kingman
Thom, Navoni, Hoff, Pierson & Ryder
37th Floor, Bank of California Center, Seattle WA 98164
(206) 623-8433

Counsel for Appellees
James J. Gillespie, U.S. Attorney; Robert M. Sweeney, Ass't U.S. Attorney
Box 1494, Spokane WA 99210
(509) 456-3811

carl Strass, Jacques B. Gelin; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5244

Counsel for Intervenor Franklin Cty.
Clarence J. Rabideau, Prosecuting Attorney
Box 1160, Pasco WA 99301
(509) 545-3543

Before ELY and NELSON, Circuit Judges, and KARLTON,* District Judge.