32 ELR 20436 -- Churchill County v. Norton

Churchill County v. Norton

No. 00-15967 (276 F.3d 1060) (UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT December 19, 2001)

ELR Digest

The court affirms a district court holding that the U.S. Fish and Wildlife Service's (FWS') failure to prepare a programmatic environmental impact statement (EIS) before approving land and water rights purchases under § 206 of the Truckee-Carson Pyramid Lake Water Rights Settlement Act (Settlement Act) did not violate the National Environmental Policy Act (NEPA). The Settlement Act addresses the use of water from the Truckee and Carson Rivers, and § 206 requires the U.S. Department of the Interior to acquire approximately 25,000 acres of wetland habitat. The FWS prepared an EIS, but not a programmatic EIS, in connection with its implementation of § 206, and local municipalities concerned about the Settlement Act's impact on their water supply filed suit. The FWS maintained that it had no obligation under NEPA to prepare a programmatic EIS because none of the anticipated water-related actions and activities had ripened into proposals.

The court first holds that the applicable regulations do not require a final proposal, and sufficient evidence was submitted to show that many of the actions required under the Settlement Act met NEPA's definition of a proposal. Nevertheless, the court holds that the FWS took a hard look at its program, and its decision not to proceed with a programmatic EIS was not arbitrary. The record does not support a conclusion that the FWS' goal was to minimize the possible cumulative environmental impacts by segmenting the wetlands water rights acquisition program from the analysis of other foreseeable actions. Additionally, the EIS issued by the FWS did not fail to assess the cumulative impacts of actions other than the proposed acquisition, did not fail to address the impacts on groundwater resources adequately, and did not impermissibly segment the water rights acquisition for certain wetlands from the conservation plan for managing wetlands.

[A prior decision in this litigation is published at 28 ELR 21463.]

The full text of this decision is available from ELR (40 pp., ELR Order No. L-426).

Counsel for Plaintiffs
Antonio Rossmann
Law Offices of Antonio Rossmann
380 Hayes St., Ste. 1, San Francisco CA 94102
(415) 861-1401

Counsel for Defendants
Kathryn E. Kovacs
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]