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Abbema v. Fornell

decided: December 10, 1986.

LOREN VAN ABBEMA AND BARBARA VAN ABBEMA, AND EDWARD R. KOEBER AND MARY D. KOEBER, PLAINTIFFS-APPELLANTS,
v.
PAUL FORNELL, D/B/A WARSAW BARGE LOADING FACILITY, JOHN O. MARSH, SECRETARY OF THE ARMY, AND LT. GEN. J. K. BRATTON, CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, DEFENDANTS-APPELLEES; LOREN VAN ABBEMA AND BARBARA VAN ABBEMA, AND EDWARD R. KOEBER AND MARY D. KOEBER, PLAINTIFFS, PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-INTERVENOR-APPELLANT, V. PAUL FORNELL, D/B/A WARSAW BARGE LOADING FACILITY, JOHN O. MARSH, SECRETARY OF THE ARMY, AND LT. GEN. J. K. BRATTON, CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, DEFENDANTS-APPELLEES



Appeals from the United States District Court for the Central District of Illinois, Springfield Division, No. 84 C 1153, Michael M. Mihm, Judge.

Author: Cudahy

Before CUMMINGS and CUDAHY, Circuit Judges, and GORDON, Senior District Judge.*fn*

CUDAHY, Circuit Judge

The plaintiffs and the intervenor challenge the validity of a permit issued by the United States Army Corps of Engineers (the "Corps") to Paul Fornell to build a facility for "transloading" coal from trucks to barges on the Mississippi River at Warsaw, Illinois. The plaintiffs and the intervenor argue that the Corps should not have issued the permit without preparing an Environmental Impact Statement, that the Corps improperly conducted its public welfare review and its consideration of alternatives to the proposed facility and that the district court improperly excluded certain evidence in its approval of the permit. We agree with the district court that the Corps could properly decline to prepare an Environmental Impact Statement, and we find that the district court could properly exclude extrinsic testimony in its review of the Corps' decision. However, because the administrative record does not permit us to conclude that the Corps adequately evaluated the economics of and alternatives to the proposed facility, we affirm in part and vacate and remand in part.

I.

On November 19, 1981, Paul Fornell applied to the Rock Island District of the Corps for a permit to construct and operate a facility in Warsaw, Illinois that would transload coal from trucks to barges on the Mississippi River. The proposed facility consists of an access road from the highway, a dumphouse in which tractor-trailer rigs dump coal into an underground hopper, a conveyor belt beneath the hopper that carries the coal underground to the river bank and then, supported by piers, some 300 feet into the river, and a hinged-boom loading chute on a dock where barges are moored and filled with the coal. Fornell (the "applicant") intends to transload some 485,000 tons of coal per year, trucking it from the Freeman United Coal Mining Company mine (the "Freeman Mine") near Industry, Illinois to his facility, then towing it in barges to Muscatine Power and Water Company ("Muscatine Power") in Muscatine, Iowa. The applicant estimates this operation will require approximately 129 truck round-trips per day and 58 barge round-trips per year during the operating season of March 15 to December 1.

The proposed site of the facility lies within the Warsaw Historic District (part of the National Register of Historic Places) and includes a noteworthy brewery complex, dating from 1868. The site lies near the Fort Edwards State Historic Monument - the westernmost frontier post in the War of 1812 and now a scenic outlook - and abuts a portion of the Great River Road, a National Scenic Highway along the Mississippi River. The proposed truck route between the Freeman Mine and this facility would pass through three state and private nature reserves totaling some 900 acres, and through a Western Illinois University life-science field station. These preserves are sanctuaries for many species of wildlife and serve as a major wintering area for bald eagles, with at least 50 eagles present in each recent winter and more than 450 in the winter of 1978-79. See Administrative Record ("AR") at 679.

The Corps Rock Island District Engineer, in order to address these and other concerns, conducted a public hearing in Warsaw on March 18, 1982, solicited opinions from many local, state and federal agencies and distributed a draft Environmental Assessment to approximately 630 individuals and institutions for comments. After conducting the hearing and reviewing the hundreds of comments and opinions in support of or in opposition to the proposed facility, the district engineer concluded that it was not in the public interest to issue the permit. Because the Governor of Illinois favored the proposal, however, Corps regulations required that the proposal be evaluated by the Corps Division Engineer in Chicago. The division engineer reviewed the record from the district and solicited additional information from the public and government agencies. Upon his review the division engineer determined that an Environmental Impact Statement was not required and that the permit was in the public interest. On January 10, 1984, the permit was granted with several special conditions designed to mitigate adverse impacts of the facility. Among these special conditions were requirements that the facility not operate between December 1 and March 15, that 200 new trees be planted as visual screening, that no coal storage or backhauling occur on the site, that no barges be fleeted on the permit area and that the applicant repair and restore the brewery building on the site.

In May of 1984, the plaintiffs filed this action in the district court. Plaintiffs are Warsaw residents who live across the street from the proposed site of the coal-loading facility. The people of the State of Illinois, by the attorney general, sought and were granted intervention as of right on January 4, 1985. A bench trial was held, and on November 27, 1985, the district court suspended the permit and remanded the case to the Corps to evaluate the proposal's impact on the Great River Road, and thereafter to reevaluate environmental consequences and rebalance the public interest. On remand the Corps did that much and more, enlarging the administrative record with some reevaluation of alternatives (by recalculating mileages from the Freeman Mine) and with some findings on recreational and scenic impact. A hearing was held on March 24, 1986 to evaluate compliance with the remand. On April 30, 1986, the district court entered judgment affirming the Corps' decision to issue the permit. This appeal followed.

II.

The Corps is, of course responsible for evaluating proposed construction projects in navigable waters of the United States. See River and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 (1982). And in that connection it must comply with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 to 4347 (1982). Regulations construing NEPA and applying it to the Corps, 40 C.F.R. §§ 1500 to 1508, 33 C.F.R. § 230, outline the procedure the Corps must following evaluating a proposed facility. Before issuing a permit the Corps must prepare an Environmental Assessment (an "EA") to determine whether the proposed facility "could have significant effects on the environment" and therefore require a more comprehensive Environmental Impact Statement (an "EIS"). 33 C.F.R. § 230, App. B(8)(a). Typically the EA is a brief interdisciplinary evaluation of the need for a proposed action, the likely environmental effects of a proposal, the alternatives to a proposal and a list of agency, interest group and public comments received regarding the proposal. See 33 C.F.R. § 230.9(c). In addition to the EA and its Finding of No Significant Impact (a "FONSI") or its requirement of an EIS, where a proposal "involves unresolved conflicts concerning alternative uses of available resources," the Corps must "study, develop, and describe appropriate alternatives to recommended courses of action." NEPA, 42 U.S.C. § 4332(2)(E); see River Road Alliance v. United States Army Corps of Engineers, 764 F.2d 445, 452-53 (7th Cir. 1985), cert. denied, 475 U.S. 1055, 106 S. Ct. 1283, 89 L. Ed. 2d 590 (1986).

Ultimately, the Corps must undertake a general "public interest review" to decide whether permit should issue. See 33 C.F.R. § 320.4(a). In this general review, the Corps must evaluate a proposal's overall impact on the public interest, balancing "benefits which reasonably may be expected to accrue from the proposal . . . against its reasonably foreseeable detriments," considering all relevant factors, including more than twenty specific subjects of concern detailed in 33 C.F.R. § 320.4(a). In reviewing this public interest determination by the Corps, it is not our role to second-guess. We merely consider whether the Corps followed required procedures, evaluated relevant factors and reached a reasoned decision. As this circuit has noted, whether we dub the standard one of "reasonableness" or one to determine if a decision was an "abuse of discretion," our role is to decide whether the Corps exceeded its decision-making authority in issuing the permit. See River Road Alliance, 764 F.2d at 449-50; Wisconsin v. Weinberger, 745 F.2d 412, 417 (7th Cir. 1984). As has often been noted, we must see to it that the agency took a "hard look" at the environmental factors implicated and based its decision on a rational consideration of relevant factors. See Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 49 L. Ed. 2d 576, 96 S. Ct. 2718 (1976); Wisconsin v. Weinberger, 745 F.2d at 417; Sierra Club v. Peterson, 230 U.S. App. D.C. 352, 717 F.2d 1409, 1413 (D.C. Cir. 1983).

Here the Corps produced an administrative record of some 2,600 pages and ultimately issued a permit hedged about by 23 special conditions designed to mitigate adverse environmental impacts. The district court engaged in extensive review of the factual record, considered plaintiffs' several challenges in some detail and remanded the case once for further evaluation before concluding that the Corps' decision to issue the permit should be upheld. But this has not stilled the plaintiffs' or the attorney general's objections.

As a threshold matter, we do not agree with Fornell's suggestion that this court no longer has jurisdiction because construction of the facility has begun. See Fornell Brief at 38-41. The plaintiffs and the intervenor claim that the permit was improperly issued. The injuries that flow from this unsanctioned issuance, they claim, occur both in the construction and in the operation of the facility. If plaintiffs and the attorney general were to succeed in showing that the permit had to be revoked or modified, we presumably could order that the facility be dismantled, altered or operated differently. See Columbia Land Basin Protection Ass'n v. Schlesinger, 643 F.2d 585, 591 n.1 (9th Cir. ...


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