ELR Citation: ELR 21433
No(s). 87-2657 (10th Cir. Jul 2, 1990)

The court holds that a project by the state of New Mexico, the county of Bernalillo, and the city of Albuquerque to construct two bridges across the Rio Grande River is not subject to the National Environmental Policy Act (NEPA). The project does not constitute a major federal action. Although the state, county, and city are eligible to receive federal funding, they have not sought it. Absent a showing that local defendants engaged in a sham transaction to evade federal environmental requirements, assistance by the Federal Highway Administration in the preparation and approval of an environmental impact statement does not constitute major federal action. Federal funds for the location study constitute a miniscule portion of the total cost of the project, and plaintiffs produced no evidence that the federal government actually controls the project. The project was properly segmented from the I-25/Los Angeles Interchange project, a major federal project subject to NEPA. Although an eastern terminus at the I-25/Los Angeles Interchange may be more logical than the one planned, plaintiffs produced no evidence that the planned terminus is illogical. The bridge project has substantial independent utility, does not foreclose the opportunity for consideration of alternatives, and does not irretrievably commit federal funds for closely related projects. The project is not subject to provisions of the National Historic Preservation Act requiring federal agencies to take into account effects on historical sites before approving expenditures of federal funds. Nor is the project subject to provisions of the Department of Transportation Act restricting approval of transportation projects by the Department of Transportation. Those provisions are applicable only to federal projects. Finally, the project is not subject to provisions of Executive Order No. 11990 requiring federal agencies to minimize destruction of wetlands. No federal agency controls the project.

Counsel for Plaintiffs-Appellants
William G. Walker
Waller & Van Heijenoort
150 Louisiana NE, Albuquerque NM 87108
(505) 268-4551

Counsel for Defendants-Appellees
Herbert A. Becker, Ass't U.S. Attorneys
P.O. Box 607, U.S. Courthouse, Rm. 12002, 500 Gold Ave. SW, Albuquerque NM 87103
(505) 766-3341

Robert L. Klarquist, Vicki L. Plaut, Roger J. Marzula
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants-Intervenors-Appellees
David Campbell, City Attorney; Edward R. Pearson, Ass't City Attorney
City Legal Department
P.O. Box 1293, Albuquerque NM 87103
(505) 768-4500

Before LOGAN, MOORE, and EBEL, Circuit Judges.