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Van Abbema v. Fornell

ELR Citation: 17 ELR 20429
Nos. Nos. 86-1892, -1974, 807 F.2d 633/25 ERC 1406/(7th Cir., 12/10/1986)

The court rules that the Army Corps of Engineers in part properly issued a permit under §10 of the Rivers and Harbors Act, but that on the record the court cannot conclude that the Corps adequately evaluated the economics of and alternatives to the facility to be permitted. Initially, the court holds that the appeal is not moot even though construction of the permitted facility has begun. The court could order that the facility be dismantled, altered, or operated differently than currently planned. Turning to the Corps' environmental documents prepared in compliance with the National Environmental Policy Act (NEPA), the court holds that the environmental assessment and finding of no significant impact were not arbitrary or capricious and evidenced a hard look at environmental factors. The court reviews the factors considered by the Corps, the public comment it received, and the conditions it placed upon the issued permit. The court next considers the Corps' compliance with NEPA §102(2)(E) to consider alternative courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources, and with 33 C.F.R. §320.4(a) to review the public interest in general before issuing a permit. The court holds that the Corps adequately considered local zoning and land use issues, effects on local portions of the Great River Road, and effects of the proposed operation on the environment. However, the court holds that in evaluating the economics of the proposal, the Corps erred in failing to address specific factual challenges to its data. Alternatives to be considered include those not within the capability of this permit applicant, and the Corps must make an effort to appraise economic benefit overall. The Corps must respond to specific challenges of underlying reports on which it relies. The court holds that the Corps unreasonably relied on an economic study that evaluated a different proposal and relied on data supplied by the applicant without considering specific challenges to it during the permitting process. Consequently, the court remands the case to the Corps to reconsider the economic evaluation of the alternatives. Finally, the court holds that testimony from witnesses need not be admitted during judicial proceedings when they have expressed views in the administrative record.

Counsel for Plaintiffs-Appellants
William S. Morris
Suite 210, 456 Fulton St., Peoria IL 61602
(309) 676-8748

Counsel for Defendants-Appellees
Tobin M. Richter
Spindell, Kemp, Kimmons & Kimball
Suite 1040, 135 S. LaSalle St., Chicago IL 60603
(312) 372-2900

James A. Lewis, U.S. Attorney
P.O. Box 375, Springfield IL 62705
(217) 492-4450

James L. Morgan
Office of the Attorney General
500 S. 2nd St., Springfield IL 62705
(217) 782-9032

Paul C. Cation
Vonachen, Cation, Lawless, Trager & Slevin
Suite 309, Security Savings Bldg., Peoria IL 61602
(309) 676-8986

Before CUMMINGS and CUDAHY, Circuit Judges, and GORDON, Senior District Judge.*