Case 109

Village of Los Ranchos v. Barnhart, 906 F.2d 1477 (10th Cir. 1990), cert. denied, 498 U.S. 1109 (1991).

Plaintiffs brought suit against the Federal Highway Administration (FHWA) alleging that it violated the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), Section 4(f) of the Department of Transportation Act, and Executive Order No. 11990 on wetlands in a dispute over the construction of two bridges across the Rio Grande River. FHWA involvement in the project consisted of providing $59 million of financial assistance for the preparation of an environmental impact statement (EIS), taking an active role in and preparing the EIS, and approving the final document. After approval of the final EIS, however, Federal involvement in the river crossing project ceased, because the State never requested Federal funding for the project itself but, instead, financed the project solely with State funds.

The Tenth Circuit's opinion focused on whether Federal involvement in the project was enough to trigger applicable statutes. The court determined that the Government was not so involved in the project as to make the project a major Federal action under NEPA or a Federal undertaking under NHPA. In holding that FHWA was not required to comply with NHPA, the court applied the same reasoning it used to find that the Federal Government's action was not a "major Federal action" triggering NEPA. 906 F.2d at 1484. Observing at the outset that Federal courts were not in agreement as to the amount of Federal involvement required to trigger NEPA, the court concluded that projects should not be deemed major Federal actions simply because they are eligible for Federal assistance.

Further, the mere preparation of an EIS for the Federal Government, including financial assistance for the study and approval of the final document, did not automatically trigger NEPA, particularly when the State voluntarily prepared an EIS when it was not legally obligated to do so. Id. at 1481. Finding that FHWA participation in and approval of the EIS did not render the project Federal in nature and, moreover, that the bridge project was not under the direct or indirect jurisdiction of FHWA, the court determined that the project was neither a major Federal action nor an undertaking. Id. at 1484.

The court also rejected plaintiffs' argument that the project was improperly segmented from the I 25/Los Angeles Interchange project, itself a major Federal action. Although the construction of the bridge was closely related physically to the Federal project, the court affirmed the district court's determination that the bridge project had a logical terminus. Id. at 1483. The court found Section 4(f) of the Department of Transportation Act inapplicable because no Federal funds were used for construction of the bridges. The court thus rejected plaintiffs' arguments that the Federal involvement in the EIS constituted "approval" of the project. Finally, the court concluded that Executive Order No. 11990 on wetlands did not apply to the project, because the Executive Order only imposed obligations upon Executive Branch agencies carrying out their responsibilities for land-use planning. Federal involvement in the project, the court concluded, was too insubstantial to trigger the requirements of the Executive Order.

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