ELR Citation: ELR 20538
No(s). 87-2657 (10th Cir. Oct 24, 1991)

The court holds that the district court's grant of summary judgment against plaintiffs, in their National Environmental Policy Act (NEPA) challenge of the U.S. Army Corps of Engineers' decision to issue a Federal Water Pollution Control Act (FWPCA) §404 permit for a proposed bridge over the Rio Grande River in New Mexico, was not arbitrary or capricious. The court first holds that the district court's finding of ample evidence in the record to affirm the Corps' finding of no significant impact under NEPA was not arbitrary or capricious. The mere existence of genuine issues of material fact in the record before the Corps does not preclude a granting of summary judgment in favor of defendants, since the reviewing court need only decide if there is a material dispute about whether the agency acted arbitrarily or capricously. The environmental assessment and administrative record show that the discussion of the preservation of wetlands to be impacted by the bridge, and other potential effects, were adequate to support the agency's finding. Although appellants are correct that projects may have synergistic effects relevant to the significant impacts determination, this does not mean that the agency was arbitrary or capricious in finding that the secondary and cumulative impacts did not create a significant impact under NEPA. Moreover, the district court's extensive discussion of the Corps' consideration of alternatives is thorough and well reasoned. The court next holds that the district court did not err by limiting the evidence it heard to the agency administrative record and thereby preventing the appellants from possibly relitigating the case in the district court. Even with its holding limiting the evidence, the district court took the new evidence into account. The court holds that the district court's statement, that fracturing of the area around the proposed site caused by the new bridge will result in irreparable and irretrievable injury, does not mandate a remand on the issue of whether there was a significant impact under NEPA. It does not follow that a significant impact for NEPA purposes occurs whenever there is an undertaking of the magnitude of the bridge project, which is acknowledged to inflict some irreparable injury on the surrounding area. Finally, the court holds that the U.S. Fish and Wildlife Service did not violate any of its legal obligations by failing to recommend a "no project" alternative, and what input the Service did offer was adequately considered by the Corps.

[A related case is published at 20 ELR 21433.]

Counsel for Plaintiffs-Appellants
William G. Walker
151 Louisiana Ave. NE, Albuquerque NM 87108
(505) 268-4551

Counsel for Defendants-Appellees
John Zavitz
U.S. Attorney's Office
P.O. Box 607, Albuquerque NM 87103
(505) 766-3341

Ellen Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Holloway, Aldisert,^* and Ebel, Circuit Judges.