Case 118

Abenaki Nation of Mississquoi v. Hughes, 805 F. Supp. 234 (D. Vt. 1992), aff'd, 990 F.2d 729 (2d Cir. 1993).

The Abenaki Nation of Mississquoi, its tribal council, and several individuals challenged the Army Corps of Engineers' issuance of a general permit under the Clean Water Act necessary for the construction of a hydroelectric project in Vermont. In addition to the Corps permit, the project required a license from the Federal Energy Regulatory Commission (FERC). In order to avoid duplication of effort, the Corps and FERC established a system where FERC would assume the role of lead agency in conducting environmental reviews required by the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). To implement the system, the Corps developed a regional permit, known as GP 38, for hydroelectric development activities in the New England region. 805 F. Supp. at 237.

The Village of Swanton applied to FERC for a license for the hydroelectric project, and FERC conducted an environmental assessment (EA). Determining that licensing the project with certain conditions would have minimal impact on the environment, FERC consequently made a finding of no significant impact (FONSI). Conditions included plans to mitigate the loss of wetlands and to manage previously unrecorded archeological and historic sites discovered during construction. After reviewing the application and FERC's EA, the Corps determined that the project was eligible for the general permit.

Plaintiffs alleged several claims against the Corps. Challenging the validity of the general permit for the New England region, plaintiffs asserted that the Corps failed to comply with the Administrative Procedure Act (APA), NEPA, and its own regulations when it developed the permit. The court rejected the APA argument that the general permit was a rule requiring notice and comment, finding the permit decisionmaking proceeding more akin to an adjudication than a rulemaking. Id. at 240.

The court also found that the general permit was developed in accordance with NEPA requirements. The administrative record revealed that the Corps had conducted an EA prior to issuance of the general permit and, further, that the FONSI rendered an environmental impact statement (EIS) unnecessary. Moreover, the court determined that when the Corps reissued the general permit because it had expired, a new EA was not required. Although the Corps' regulations did not directly address requirements for reissuing existing permits, the court found that reissuing the permit was similar to extending an existing permit. In such cases, Corps regulations merely required public notice as long as no significant modifications in activity were contemplated. The original EA, when coupled with two statements of findings that the activities caused minimal environmental impacts and public notice, were all that was necessary in issuing and reissuing the general permit. Id. at 242.

In challenging the general permit, plaintiffs also alleged that they were not properly notified of the proposal. The court noted that the Corps properly provided notice of the proposal to municipalities, State agencies and officials, private organizations, and some individuals, but it was not obligated to directly notify the Abenaki Nation because it was not an Indian tribe recognized by the Bureau of Indian Affairs. Id.

Plaintiffs' next allegation focused on the specific permit authorization to the Village of Swanton. Generally, plaintiffs argued that defendants violated NEPA by not preparing an EIS. The court disagreed. It determined that it was appropriate to condition the permit on the mitigation plan proposed by the village and that the conditional permit obviated the need for an EIS because it reduced the impact of the project. Id. at 243-44. The court explained that the majority of courts have held that "mitigation measures are appropriately considered in determining whether a federal action will have a significant impact or not," even though a Council on Environmental Quality guidance document states that agencies should not rely on the possibility of mitigation to avoid an EIS. Id at 244.

Because there was substantial evidence that the mitigation measures in the instant case would minimize the adverse effects, the court found that the Corps decision not to conduct an EIS was not arbitrary or capricious. Further, the court opined that historic resources were properly considered by the Corps and mitigated by the general permit. The permit called for an archeological study, a report submitted to the State Historic Preservation Officer (SHPO), and consultation with the Advisory Council on Historic Preservation and the SHPO on resolution of adverse effects. Plaintiffs also challenged the authorization granted to the Village by alleging that the Corps failed to notify the public of the project. The court observed, however, that the Corps had given public notice when it issued GP 38, and once the Corps determined that the project was within the GP 38, no additional notice was required. Id. at 247.

Notice was also an issue under the NHPA claim. Plaintiffs alleged that the Corps failed to notify interested persons prior to authorizing the project and thus violated NHPA. However, the court determined that plaintiffs did not fall within the definition of interested persons because the Council's regulations include as interested persons those Indian tribes recognized by the Secretary of the Interior; the Abenaki Nation was not so recognized. Id. at 249-50 (citing 36 C.F.R. § 800.2(g), 800.5(e)(1)). Finding that plaintiffs were not interested persons as defined by the regulations, the court concluded that plaintiffs were not entitled to participate as consulting parties or receive documentation as part of the Section 106 process. Id. at 250. Significantly, the court held that, as members of the public, plaintiffs were entitled to receive information and express their views. Id. (citing 36 C.F.R. § 800.5(e)(3)). Indeed, the Corps met with representatives of the Abenaki Nation to hear their concerns about the effect of the project. The court determined that the Corps provided the Abenaki Nation, as members of the public, with proper notice and an opportunity to comment on the project.

In addition to the question of public notice, the court also examined whether the Corps adequately considered the effect of the project on historic properties as required by Section 106. As lead agency, FERC had made a finding of no adverse effect, in which the SHPO and the Council concurred, based on the mitigation plan that mandated avoidance and mitigation of impacts. Apparently, plaintiffs did not challenge this finding. However, plaintiffs claimed that the historic resources at the mitigation site were not properly considered. The court reviewed the administrative record and found that the Corps consulted with the SHPO, met with plaintiffs several times, and reached an agreement with the SHPO as to how to mitigate adverse effects if historic properties were discovered at the mitigation site. The SHPO's recommendations were incorporated into the authorization for the project as conditions, providing concrete procedures to follow if historic resources were discovered.

The court found that the Corps was "in technical violation of the NHPA," as it did not adhere to the Council's procedures by including its agreement with the SHPO in a Memorandum of Agreement. Id. at 251. However, the court nevertheless concluded that the Corps had fulfilled the intent of NHPA by reaching an agreement with the SHPO and conditioning the permit. The court noted that the Council's regulations allow that they be applied in a "flexible manner." Id. (quoting 36 C.F.R. § 800.3(b)).

The Abenaki Nation also alleged a violation under the Native American Graves Protection and Repatriation Act (NAGPRA). The court stated that NAGPRA applies to cultural and funerary objects already possessed or under the control of a Federal agency or those already discovered or excavated. Id. at 252. Because there had not yet been any items discovered at the site, the court found plaintiffs' claim premature. The court did note, however, that NAGPRA did not apply to the facts of the case because the site was not on Federal or tribal land. The court rejected plaintiffs' argument that the site should be considered Federal land because the Corps had the power to regulate it under the Clean Water Act and supervised the mitigation plan. Such a broad interpretation, reasoned the court, would require compliance with NAGPRA whenever the Government issued permits or provided Federal funding.

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