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Tomac v. Norton

March 24, 2005

TOMAC, PLAINTIFF,
v.
GALE A. NORTON, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



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

MEMORANDUM

Plaintiff sues to prevent the Bureau of Indian Affairs from acquiring land in trust on behalf of the Pokagon Band of Potawatomi Indians. The Bureau has now fully complied with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. The government's renewed for summary judgment will accordingly be granted.

Background

This is the third opinion that I have issued in this case, which has been before me since 2001. See TOMAC v. Norton, 193 F. Supp. 2d 182 (D.C.D. 2002) (TOMAC I); TOMAC v. Norton, 240 F. Supp. 2d 45 (D.C.D. 2003) (TOMAC II). The facts of the case and its procedural history were set forth in those earlier decisions and will not be repeated in any detail here.

My decision in TOMAC II granted summary judgment for the government on all issues except one. I found that the environmental assessment (EA) and related finding of no significant impact (FONSI) performed by the Bureau of Indian Affairs had failed adequately to consider secondary impacts from growth and development associated with the casino the Pokagon will build on the property and remanded the case to the Bureau for further consideration of two related problems: 1) the original EA and FONSI did not sufficiently analyze the environmental impact associated with growth-induced development related to the casino; and 2) the original FONSI and EA failed adequately to explain why the development of such a large project (with 5,600 new jobs and a need for housing 800 new employees and their families in the immediate area) would not have a significant impact on a community of 4,600.

In August 2003, the Bureau issued a lengthy supplement to its EA, and in November 2003 it issued a revised FONSI. The revised FONSI found that there would be no significant impact from growth, except for the increased demand for water and sewage services, which would tax the capacities of the current systems. That impact, the Bureau found, would be mitigated into insignificance by planned systems enhancements for which the Pokagon Band have agreed to provide partial funding. The Bureau has now renewed its motion for summary judgment. TOMAC opposes the motion on one procedural and numerous substantive grounds. The Pokagon Band (who assisted the Bureau in drafting the supplement to the EA) has filed briefs amicus curiae, which are joined and supported by New Buffalo Township and the City of New Buffalo.

Analysis

NEPA requires that agencies prepare environmental impact statements (EIS) for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). There is a two-step process to determine if an action has a "significant" impact. The agency initially performs an environmental assessment (EA). 40 C.F.R. § 1501.4. That assessment leads to a decision either to prepare a FONSI, or (if there will be significant effect to prepare a full EIS. Id.*fn1

A decision to issue a FONSI rather than prepare a full EIS is entitled to deference. "'Congress apparently was willing to depend primarily upon the agency's good faith determination as to what conduct would be sufficiently serious from an ecological standpoint to require use of the full-scale procedure.'" Public Citizen v. Nat'l Hwy. Traffic Safety Admin., 848 F.2d 256, 266 (D.C. Cir. 1988) (quoting Hanly v. Kleindienst, 471 F.2d 823, 830 (2nd Cir. 1972)). My role is to ensure that the Bureau has not ignored any "arguably significant consequences." Public Citizen, 848 F.2d at 266-67. I may reverse the agency's decision only if it was "arbitrary, capricious or an abuse of discretion." Sierra Club v. United States Dep't of Trans., 753 F.2d 120, 126 (D.C. Cir 1985). I must carefully consider four factors in my analysis: (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).

Opportunity for Public Participation

TOMAC's procedural argument, that the Bureau should have submitted its 2003 EA supplement for public comment, is rejected. The BIA decided not to do so, reasoning that "the supplemental assessment is essentially a response to public input (albeit through litigation but from a public party none the less)." AR4_168. The BIA also thought it unlikely that further public comment would identify categories of effects not already explored. Id. There have been extensive opportunities for formal and informal public comment in this case, see Amicus Curiae Pokagon Band's Reply at 11 n.18., as well as numerous public filings associated with four years of litigation (including hundreds of pages of material from TOMAC addressing the EA supplement and new FONSI). FONSIs must be made available for public review, 40 C.F.R. § 1501.4(e)(1), as was done here, but there is no explicit statutory or regulatory requirement that EAs be submitted for public comment. Fund For Animals v. Norton, 281 F.Supp.2d 209, 225 (D.D.C. 2003).

Substantive Findings of No Significant Impact From Growth-Induced Development

1. Local Zoning Restrictions

It was not unreasonable for the BIA to conclude that local zoning regulations will control growth-induced impact. For development done in the context of local zoning restrictions, cohesiveness of neighborhoods, population density, crime control, and esthetics... will be no greater than demanded by the residents acting through their elected representatives. There is room for the contention, and there may even be a presumption, that such incremental impact on the environment as is attributable to [this use] is not 'significant.' Maryland-Nat'l Capitol Park and Planning Comm'n v. U.S. Postal Serv., 487 F.2d 1029, 1036-37 (D.C. Cir. 1973); see Sierra Club v. Cavanaugh, 447 F.Supp. 427, 432 (D.S.D. 1978) (finding no significant impact where local zoning restrictions controlled development that would result from new water system). There are cases noting that local authorities may be influenced by political pressure to change zoning rules in ways that allow for greater impact on the environment, see, e.g., CETAC v. Norton, No. 02-1754, slip op. at 16 (D.D.C. Apr. 23, 2004); Mullin v. Skinner, 756 F. Supp. 904, 921 (E.D.N.C. 1990), but those cases only stand for the proposition that local planning documents may not be "invoked in a perfunctory ...


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