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Shoshone-Paiute Tribe v. United States

ELR Citation: 26 ELR 20281
Nos. Nos. 92-185-S-HLR et al., 889 F. Supp. 1297/(D. Idaho, 10/07/1994)

A magistrate judge holds that the U.S. Department of the Air Force abused its discretion when it failed to include the impact of a new state-managed air-to-ground training range in an environmental impact statement (EIS) prepared under the National Environmental Policy Act (NEPA) to evaluate the environmental effect of the beddown, or creation, of an Air Force composite wing, or group of aircrafts stationed together, to be trained at the Idaho Mountain Home Air Force Base. The magistrate first holds that the training range was a major federal action under 40 C.F.R. §1508.18, because the evidence in the record establishes that the Air Force at least partly assisted in the development of the training range. The magistrate next holds that the training range was a proposed major federal action under NEPA §102(2)(C) at the time the EIS was being prepared for creating the composite wing. By the time the Air Force EIS for the composite wing was being prepared, the general acreage and boundaries of the training range had been established, and target locations had been plotted with precise longitude and latitude coordinates. Moreover, the administrative record shows that the training range was originally going to be included in the Air Force EIS and was pulled back out because of concern that opposition to the range might delay establishment of the composite wing, not because the range was too vague. The connection between more aircraft at the base and a larger training range is supported throughout the record. The magistrate thus holds that the training range proposal was at the feasibility stage as defined in 40 C.F.R. §1502.5(a), and that the program was sufficiently definite to meet the criteria in 40 C.F.R. §1508.23. The magistrate holds that the training range and the approximately 70 aircraft that make up the composite wing are inextricably intertwined. The magistrate holds that they are connected actions under 40 C.F.R. §1508.25(a)(1)(iii) because the training range is an interdependent part of the composite wing, and the range depends on the composite wing for its justification. The magistrate distinguishes Second Circuit precedent that applies a subjective, independent utility test to determine whether two actions are connected. Applying the Ninth Circuit's objective test, the magistrate holds that the training range would not have been proposed without the composite wing. The magistrate also holds that the training range and composite wing are cumulative actions that must be considered together in a single EIS under §1508.25(a)(2). The training range proposal was definite at the time of the Air Force EIS and involves reasonably foreseeable impacts. The magistrate thus holds that the failure to include a study of the environmental impacts of the training range in the Air Force EIS for the composite wing was an abuse of discretion or otherwise not in accordance with law, and without observance of the procedure required by law under the Administrative Procedure Act. The magistrate is reluctant, however, to recommend a detailed injunction that might have unintended consequences, because the parties spent little time discussing in detail the nature and scope of the injunction. The magistrate thus recommends that if the court agrees with the legal conclusion that the EIS was not prepared in accordance with applicable law and regulations, the court should direct counsel to meet to determine whether a stipulation as to the nature and scope of a proposed injunction can be agreed to pending the completion of a new EIS and record of decision. If counsel are unable to agree, then additional briefs should be submitted on the issue. The magistrate notes that if the composite wing is being trained elsewhere, and in the absence of evidence that the Air Force would suffer undue hardship if this situation continued until a combined EIS was completed, it would appear that the balance of hardships tips toward the environmental groups, Native Americans, and landowners challenging the EIS. With regard to the scope of the injunction, the magistrate notes that any injunction issued by the court could not affect the decision to create the composite wing at Mountain Home, nor could it affect the training of the composite wing. The effect of any injunction will therefore be narrow and will essentially be designed to maintain the status quo until the completed EIS and associated record of decision can be completed. Finally, the magistrate denies as moot plaintiffs' motion to strike a declaration, because the magistrate has not relied in any way on the declaration or its attachments.

Counsel for Plaintiff
Brian N. Donesley
802 W. Bannock St., Boise ID 83702
(208) 343-3851

Counsel for Defendants
D. Marc Haws, Ass't U.S. Attorney
U.S. Attorney's Office
328 U.S. CtHse., 550 W. Fort St., Boise ID 83724
(208) 334-1211