assessment's discussions of groundwater, prime farmland,
floodplains and stormwater runoff, wetlands, and wildlife and vegetation
do not address secondary growth at all.
The second problem is that the assessment and FONSI do not clearly
explain the Bureau's conclusion that an increase of 5,600 new jobs, 800
new employees and their families, and related changes in physical
development and natural resource use will not have a significant effect
on a community of 4,600. Cf. Sierra Club v. Marsh, 769 F.2d 868 (1st
Cir. 1985) (full environmental impact statement required for project
expected to generate 2,750 new jobs in a town of less than 2,500
people). On job creation, for instances, BIA states "[t]he addition of
2,000 jobs on-site and 655 indirect jobs off-site will have a major, but
manageable, impact on local employment. An additional 2,920 jobs can be
expected to be induced from the spending of the direct and indirect
employees, depending on where those individuals reside or shop." EA at
43. Even if "manageable" is a synonym for "insignificant," and even if
simply stating the Bureau's conclusion without elaboration is adequate,
this passage does not explain why multiplying the number of jobs in a
small town does not cross the threshold of significance.
Similarly, the assessment projects a demand for 673 housing units
within the City of New Buffalo and New Buffalo Township, but provides no
analysis of the impact of that demand on an area that now has only 1800
residences, 600 of them seasonal. And while the FONSI states that
"[p]rotective measures have been agreed to by the Pokagon Band to
minimize the socioeconomic impacts to the surrounding community. See EA
Chapter 5 Mitigation Measures," FONSI at 1, that chapter only addresses
wetlands, stormwater drainage, traffic, environmental contamination
cleanup, relocation of the complex, closure of wells and septic tanks on
the casino site, floodplain management, and Indiana bat habitat. There is
no focus on the project's indirect, growth inducing effects in the
discussion of any of those items.
The Bureau need not speculate about hypothetical projects, Nat.
Wildlife Fed'n v. FERC, 912 F.2d 1471, 1478 (D.C. Cir. 1990), or
additional development projects that are not already in the planning
stages, see, e.g., Society Hill Towers Owners' Ass'n v. Rendell,
210 F.3d 168 (3d Cir. 2000); Penn. Protect Our Water & Envt'l
Resources, Inc. v. Appalachian Regional Comm'n, 574 F. Supp. 1203 (M.D.
Penn. 1982), but the Bureau's own projections of growth are not
speculation. Cf., e.g., N.C. Alliance for Transp. Reform, Inc. v. U.S.
Dep't of Transp., 151 F. Supp.2d 661, 695-97 (M.D.N.C. 2001); Mullin v.
Skinner, 756 F. Supp. 904 (E.D.N.C. 1990); Joseph v. Adams,
467 F. Supp. 141 (E.D.Mich. 1978).
There is a certain common sense appeal to TOMAC's argument that a
24-hour-a-day casino attracting 12,500 visitors per day to a community of
4,600 residents cannot help but have a significant impact on that
community. The Court's role, however, is not to substitute its own
evaluation of the severity of those effects, or even to rely on common
sense. The Court's task is to ensure that the Bureau has not ignored any
"arguably significant consequences," Public Citizen v. Nat'l Hwy. Traffic
Safety Admin., 848 F.2d 256, 266-67 (D.C. Cir. 1988). BIA will therefore
be temporarily enjoined from taking the land in trust, while the
environmental assessment is remanded for such further evaluation and
elaboration of its reasoning as BIA desires to submit concerning
secondary growth issues. The Court cannot determine whether BIA's
decisionmaking process was rational based on the conclusory statements in
the record about the
extensive growth-inducing effects of the casino. See
Friends of the Earth, Inc. v. U.S. Army Corps of Engineers,
109 F. Supp.2d 30, 38 (D.D.C. 2000) (remanding for further analysis of
proposed casino projects where the record included conclusory statements
but no actual analysis of impacts); see also State of Alaska v. Andrus,
580 F.2d 465 (D.C. Cir.) (each case must be subject to a "particularized
analysis" considering the nature of the violations and any countervailing
considerations of the public interest), vacated in part as moot,
439 U.S. 992 (1978).
Accordingly, it is this ___ day of January 2003, ORDERED that
defendants' motion for summary judgment [#21-2] is denied. And it is
FURTHER ORDERED that this case is remanded to the Bureau of Indian