Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


January 21, 2003


The opinion of the court was delivered by: James Robertson, United States District Judge


This memorandum sets forth the reasons for the accompanying order denying the government's motion for summary judgment as to the NEPA claim of TOMAC that was not dismissed by this Court's order of March 29, 2002, and remanding this case for further consideration.

The facts of the case and its procedural history were set forth in a memorandum that accompanied the March 29 order and will not be repeated here. Since March 29, the Court has heard oral argument by the parties, and by amici State of Michigan, New Buffalo Township, and City of New Buffalo, and has considered supplemental submissions by the parties concerning certain revisions to the plans for the roadway, parking lot, and footprint of the proposed casino facility.


The core issue that remains to be resolved concerns the validity of the Bureau's environmental assessment and finding of no significant impact (FONSI) under the National Environmental Protection Act (NEPA).*fn1 NEPA requires federal agencies to prepare environmental assessments for major proposed actions to determine whether they will "significantly affect[] the quality of the human environment." If there will be a significant impact, the agency must go on to conduct a full environmental impact statement (EIS). 42 U.S.C. § 4332(2)(c); 40 C.F.R. § 1501.4. Judicial review of a FONSI must ensure that an agency has not ignored any "arguably significant consequences," but must leave evaluation of the impact of such consequences to the agency's judgment unless that judgment is shown to be irrational.*fn2 Thus, a FONSI may only be overturned if the decision not to prepare an impact statement was arbitrary, capricious, or an abuse of discretion. Public Citizen v. Nat'l Hwy. Traffic Safety Admin., 848 F.2d 256, 266-67 (D.C. Cir. 1988). The controlling case law in this Circuit requires consideration of (1) whether the agency identified the relevant areas of environmental concern; (2) whether it took a "hard look" at the environmental consequences of its proposed action; (3) whether it made a convincing case that the problems studied would have insignificant impacts; and, if an impact of significance was identified, (4) whether the agency established convincingly that changes in the project sufficiently minimized it. Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983).

TOMAC raises arguments concerning all four Sierra Club elements plus a number of additional issues,*fn3 but the major dispute is over whether BIA took a "hard look" at four particular impacts and whether it made a convincing case that those impacts would not be significant.

1. Wetlands

With two intermittent streams and more than 50 wetlands scattered across the 675-acre New Buffalo site, impact on wetlands habitat has been a concern since the beginning of the project. In November 2000, the Pokagon proposed shifting the 50-acre casino complex to a new location within the larger site and carefully redrew the road connecting the facility to public roads to avoid wetlands areas. The Band's consultants concluded that only .08 acres of wetlands would be impacted under the revised proposal, but the U.S. Army Corps of Engineers identified five additional one-acre wetland areas "in the areas of the 675-acre parcel that are proposed for development" when it visited the site on November 29, 2000. EA at 19. Instead of waiting for the Corps' final report and analysis of those additional wetlands, the BIA's January 2001 environmental assessment skated over the problem, stating that only .08 acres of wetlands are expected to be disturbed, id., and noting that the Corps will have authority to require mitigation measures when and if it decides a wetland permit is required under the Clean Water Act. TOMAC argued that the Bureau's wetlands analysis failed to provide the "hard look" and convincing explanation of insignificance required under NEPA.

Government counsel suggested at oral argument that the Bureau did not consider the five additional acres to be significant because they were not located within the boundaries of the 50-acre proposed complex. That explanation was unsatisfactory. Not only was it post hoc lawyer reasoning, but it was at odds with the text of the environmental assessment, which stated that the Corps had reviewed the wetlands delineations "in the areas of the 675-acre parcel that are proposed for development."

The information, according to Nelson, was computer data pinpointing the boundaries of the wetlands using GPS equipment, id. ¶ 5. It was on the basis of this information, Nelson declares, that BIA determined that the project would have "no impact on wetlands during Phase I and a 0.08 acre impact during Phase II, if Phase II is developed," id. ¶ 6. BIA proffers the revised map and the Nelson declaration, extra-record materials, under the authority of Camp v. Pitts, 411 U.S. 138, 143 (1973), and Environmental Defense Fund v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981), as "additional explanation of the reasons for the agency decision." TOMAC first calls these new materials "post-hoc rationalization," Response to Supplemental Memorandum p. 3 — they are not — and then asserts that they do not support BIA's claims in any event — but they do. BIA's failure to ensure that the site map attached to its environmental assessment was accurate is an embarrassing indicator of the haste with which its decision was finalized on the last day of the Clinton Administration, but it is not an indicator of arbitrary or capricious action or of an abuse of discretion.

2. Impacts on State Threatened Species

TOMAC accuses BIA of making a similar rush to judgment concerning the casino's impact on state-protected plant species, but its argument on this issue is not compelling.*fn4 The Bureau decided not to wait until late spring or summer to conduct surveys of certain plants and to obtain a "no effect" letter from the Michigan Department of Natural Resources before issuing the FONSI, but the environmental assessment identifies a number of factors supporting the no significance conclusion. The Pokagon's decision to relocate the proposed casino in November 2000 avoided two protected plant species' habitats and placed the complex on land that had been in active crop production and thus was relatively unlikely to have wild species. EA at 23. The Bureau also had its consultants (who had conducted an on-site survey) review a report by TOMAC's experts (who had not), and concluded that "'[g]iven the responses provided by federal and state resource agencies, the rarity of the species listed in [TOMAC's consultants' report], and the limited amount of proposed impacts to the potential habitats not already being entirely avoided, there is little likelihood of impacts to rare species and/or critical habitats.'" Id. at 23-24; see also EA App. L, M.

Although the environmental assessment omits a few threatened species identified by the Bureau's consultants from the list of impacted plants, compare EA at 10, 23, with AR 855, the Bureau did consider available data on the potential impacts and explain its conclusions. A court may not secondguess an agency's determination that the costs of delay outweigh the benefits of further study, State of Alaska v. Andrus, 580 F.2d 465, 472-74 (D.C. Cir. 1977), partially vacated on other grounds, 439 U.S. 922 (1978), and must accord particular deference to agencies in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.