ELR Citation: ELR 20907
No(s). s. 84-2149, -2177 (9th Cir. Aug 13, 1985)

The court holds that the environmental impact statement (EIS) for a transmission line project on federal land within Henderson, Nevada, adequately addressed alternative routes for the line and its potential health hazards. Henderson first claims that the transmission line crosses a small parcel of nonfederal land, which is subject to local land use controls, not the federal right-of-way. The court holds, however, that the district court's finding that the line crosses only federal land was not clearly erroneous.

Second, the court holds that Henderson's local zoning ordinances impermissibly conflict with the granting of a federal right-of-way under the Federal Land Policy and Management Act (FLPMA) and thus are preempted, rejecting Henderson's argument that even if the entire route is federally owned, the project is still subject to its land use controls because it is a private venture and the terms of the right-of-way give priority to local zoning law. Even assuming the project is private, the Secretary of the Interior may authorize such activities free of any regulatory interference from local agencies. Also, although the terms of the right-of-way require the project to comply with applicable local laws, local law applies only to the extent it does not result in a land use that conflicts with federally designated land use.

Third, Henderson contends that the effect of placing the transmission line within 130 feet of an existing line is to informally designate the path of the two lines as a corridor pursuant to FLPMA §503, under which future right-of-ways along the corridor are virtually free from further environmental review. The court holds that since the government stipulated that it would not contest a finding that no corridor existed and no formal corridor designation was attempted, no FLPMA §503 issue is presented.

Fourth, the court holds that the project's EIS was adequate. Although the district court erred by focusing in its analysis of the adequacy of the EIS on the superiority of the preferred alternative route instead of making a finding on the reasonableness of a proposed route that avoids the city, it was not reversible error in light of the substantial evidence that this route was unreasonable because it would be significantly more costly and environmentally destructive. Henderson also claims that the EIS did not adequately address potential health hazards to its residents. Applying the rule of reason, the court holds that since Henderson has not demonstrated the existence of any significant health hazards, the EIS's brief discussion provided adequate information to allow the Secretary to make an informed decision. Finally, the court holds that a new EIS is not necessary to evaluate new health hazard information or Henderson's growth because no new federal activity is proposed and the new information is not likely to affect the results of the EIS.

Counsel for Appellants
Shauna Hughes, City Attorney
243 Water St., Henderson NV 89105
(702) 565-2803

Elizabeth J. Foley, John P. Foley
Suite A-1, 601 South Rancho Dr., Las Vegas NV 89106
(702) 386-5900

Counsel for Appellees
Arthur E. Gowran
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2754

Henry C. Thumann
O'Melveny & Myers
400 S. Hope St., Los Angeles CA 90071-2899
(231) 669-6000

Before GOODWIN, HUG, and SCHROEDER, Circuit Judges.