Hoosier Environmental Council, Inc. v. U.S. Army Corps of Engineers

No. IP98-0606-C-M/S (105 F. Supp. 2d 953) (S.D. Ind. July 19, 2000)

ELR Digest

The court holds that the U.S. Army Corps of Engineers properly granted a riverboat casino operator a Clean Water Act (CWA) and Rivers and Harbors Appropriations Act permit to construct and operate a riverboat gambling facility on the Ohio River in Indiana. The court first holds that the Corps properly identified and evaluated the reasonably foreseeable indirect effects of the proposed project. No facts were presented to the Corps that would make their assessments unreasonable, nor were there any making the likelihood of secondary development reasonably foreseeable. Similarly, the court holds that the Corps adequately considered the cumulative effects of the riverboat casino project. The environmental groups challenging the grant of the permit do not meet their burden of proof, rather, they merely question the extent of cumulative impacts considered by the Corps and do not point to any facts in the record that would demonstrate that the Corps abused its discretion. They also fail to show that the Corps ignored or did not follow the advice and guidance it received from other agencies with technical expertise. The court next holds that the Corps properly granted CWA § 404's permit to the operator while still calling for submission of additional studies about the effects of the cruising schedule on rush hour traffic and the operation of the riverboat on mussel beds. The requirement of additional studies indicates that the Corps was aware of and considered all impacts on the mussel beds by the project's construction and operation. Also, based on traffic studies in the record and a state agency's recommendation that no additional capacity was needed, the Corps found that the casino would not have a significant impact on traffic in the vicinity of the project. The court further holds that the Corps adequately considered the impact of the project on floodplains and considered feasible alternatives before incorporating project modifications in the permit to protect floodplains. The court next holds that the Corps adequately considered ozone impacts the project had on the region's air quality plan.

The court goes on to hold that the Corps properly considered the narrow range of alternatives, given the limiting factors surrounding the placement of the project. The court finally holds that the public interest review was not arbitrary, capricious, or contrary to law.

The full text of this opinion is available from ELR (50 pp., ELR Order No. L-248).

Counsel for Plaintiffs
Michael A. Mullett
Mullett & Associates
309 W. Washington St., Indianapolis IN 46204
(317) 636-5165

Counsel for Defendants
Sue H. Bailey
U.S. Attorney's Office
U.S. CtHse.
46 E. Ohio St., 5th Fl., Indianapolis IN 46204
(317) 226-6333

[30 ELR 20786]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]