ELR Citation: ELR 20994
No(s). 89-5575SD (8th Cir. Mar 7, 1991)

The court holds that the Forest Service's decision to exchange a parcel of federal land was not arbitrary or capricious and did not violate the National Environmental Policy Act (NEPA), the American Indian Religious Freedom Act (AIRFA), or the First Amendment. The court holds that the Forest Services' environmental assessment of the exchange and the proposed use of the land after the exchange are not arbitrary or capricious. The environmental assessment adequately discussed the impacts of sewage disposal for the planned development on water quality. The Forest Service's conclusion that the exchange and consequent development would not have a significant impact on air quality, soil, and aesthetics was not arbitraryor capricious. The evidence supports the Forest Service's conclusion that the area is not critical habitat for bald eagles and peregrine falcons. The environmental assessment was not arbitrary or capricious in concluding that the proposed parcel for exchange does not contain unique historical or cultural resources. Although the Forest Service should have referred to specific state statutes, the error was harmless because the environmental assessment covered the same subject matter. Eight letters in opposition to the exchange and an affidavit from a biology professor who takes students on field trips to the site are insufficient to qualify as a substantial environmental issue, and do not render the service's decision not to prepare an environmental impact statement arbitrary or capricious. When the government exchanges land, it must consider the environmental impact of the proposed use by the private purchaser, but not by subsequent purchasers in the environmental assessment. The opponents' evidence that the exchange recipient intends to sell the land after the exchange does not invalidate the environmental assessment. The Forest Service must consider the information available at the time it makes its decision. The court holds that the AIFRA does not require that the Forest Service consult with Indian spiritual leaders. The court also holds that the AIFRA creates no judicially enforceable rights. The court holds that the First Amendment does not require the government to conduct its affairs to comport with the religious beliefs of its citizens. The court holds that NEPA does not mandate consideration of a proposal's possible impact on religious sites or observances.

Counsel for Appellants
Larry Leventhal
420 Sexton Bldg., 529 S. Seventh St., Minneapolis MN 55415
(612) 333-5747

Bruce Ellison
P.O. Box 2508, Rapid City SD 57709
(605) 348-9458

Counsel for Appellees
Robert Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before WOLLMAN and MAGILL, Circuit Judges, and HEANEY, Senior Circuit Judge.