Alliance to Protect Nantucket Sound, Inc. v. United States Department of the Army

United States Court of Appeals
For the First Circuit

No. 03-2604

ALLIANCE TO PROTECT NANTUCKET SOUND, INC.;
RONALD G. BORJESON; WAYNE G. KURKER; SHAREEN DAVIS;
ERNEST R. ELDREDGE; DAVID ELLSWORTH; ROBERT HAZELTON;
OSTERVILLE ANGLERS CLUB, INC.; HYANNIS ANGLERS CLUB, INC.,

Plaintiffs, Appellants,

v.

UNITED STATES DEPARTMENT OF THE ARMY; THOMAS E. WHITE, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF THE ARMY; UNITED STATES ARMY
CORPS OF ENGINEERS; LT. GENERAL ROBERT B. FLOWERS, IN HIS
OFFICIAL CAPACITY AS CHIEF OF ENGINEERS FOR THE UNITED STATES
ARMY CORPS OF ENGINEERS; COLONEL THOMAS L. KONING, IN HIS
OFFICIAL CAPACITY AS DISTRICT ENGINEER FOR THE UNITED STATES
ARMY CORPS OF ENGINEERS; CAPE WIND ASSOCIATES, LLC,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.

Benjamin S. Sharp, with whom Donald C. Baur, Perkins Coie LLP,
Franklin H. Levy and Duane Morris, LLP, were on brief, for
appellants.
David C. Shilton, Attorney, United States Department of
Justice, with whom Thomas L. Sansonetti, Assistant Attorney
General, Environment and Natural Resources Division, Gerard T.
Leone, Acting United States Attorney, Anton P. Giedt, Assistant
United States Attorney, Jon M. Lipshultz, John A. Bryson, and
Richard Santino, of cousel, Army Corps of Engineers, Concord, MA,
were on brief, for the federal appellees.
Timothy J. Dacey, with whom Kurt W. Hague and Goulston &
Storrs, P.C., were on brief, for appellee Cape Wind Associates,
LLC.

February 16, 2005

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 TORRUELLA, Circuit Judge. On November 20, 2001, Cape

Wind Associates, L.L.C. ("Cape Wind") submitted an application to

the U.S. Army Corps of Engineers ("Corps") for a navigability

permit under Section 10 of the Rivers and Harbors Act of 1899

("Section 10"), 33 U.S.C. § 403,1 to construct and operate an

offshore data tower in an area of Nantucket Sound known as

Horseshoe Shoals. Horseshoe Shoals is located on the Outer

Continental Shelf ("OCS"), land subject to federal jurisdiction and

control under the Outer Continental Shelf Lands Act ("OCSLA"), 43

U.S.C. § 1331.

The proposed tower was to consist of a platform and a

fixed monopole approximately 170 feet high, supported by three

steel piles driven into the ocean floor. Various instrumentation

was to be attached to the data tower in order to gather data for

use in determining the feasibility of locating a wind energy plant

on Horseshoe Shoals. A separate permit application for the wind

energy plant -- a complex originally proposed to include 170 wind

turbines with blade rotors rising 423 feet above mean sea level,

occupying twenty-six square miles of Horseshoe Shoals -- was

submitted to the Corps in November 2001. That application is not

at issue in the instant appeal, and we therefore will not engage in

1
Section 10 delegates authority to the Corps to issue permits for
projects that impact on the navigability of United States waters.
33 U.S.C. § 403.

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any analysis of the Corps's authority to permit construction of the

wind energy plant.

On December 4, 2001, the Corps announced that it was

considering Cape Wind's application for the data tower, and invited

the public to submit comments during a period that included two

public hearings and ended on May 13, 2002. On August 19, the Corps

issued a Section 10 permit authorizing Cape Wind to construct and

maintain the data tower, subject to the imposition of sixteen

special conditions, including that Cape Wind remove the data tower

within five years, that it post a $300,000 bond for emergency

repairs or removal, and that it share the data collected with, and

permit the installation of additional data-gathering equipment by,

government agencies, research institutions, and others. Department

of the Army Permit No. 199902477 (Aug. 19, 2002). The permit was

accompanied by an Environmental Assessment ("EA") and Finding of No

Significant Impact ("FONSI"), as required by the National

Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4331-32.

Appellants subsequently filed an action against the Corps

in the District of Massachusetts, arguing that (1) the Corps lacked

authority to issue a Section 10 permit for the data tower; (2) the

Corps acted arbitrarily and capriciously, in violation of the

Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), by

granting Cape Wind's permit application in spite of Cape Wind's

lack of property rights on the OCS; and (3) the Corps failed to

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comply with NEPA requirements for evaluating the data tower's

environmental impacts. Upon the receipt of cross motions for

summary judgment, the district court granted summary judgment in

favor of the Corps and intervenor Cape Wind. We review that

decision de novo, construing the evidence in the light most

favorable to appellants. See Straughn v. Delta Air Lines, Inc.,

250 F.3d 23, 33 (1st Cir. 2001). We will uphold the grant of

summary judgment if there is no genuine issue of material fact and

appellees are entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). We affirm the decision of the district court.

I. Discussion

A. Corps jurisdiction

The reach of the Corps's Section 10 permitting authority

on the OCS turns on a question of statutory interpretation.

Congress passed OCSLA in 1953 to assert federal jurisdiction over

the OCS and to establish a regulatory framework for the extraction

of minerals therefrom. See 43 U.S.C. § 1332; see also Ten Taxpayer

Citizens Group v. Cape Wind Assocs., 373 F.3d 183, 188 (1st Cir.

2004) ("A major purpose of the OCSLA was to specify that federal

law governs on the [OCS] . . . .") (internal quotation marks

omitted). Accordingly, OCSLA extended the Corps's Section 10

regulatory authority "to prevent obstruction to navigation in the

navigable waters of the United States . . . to artificial islands

and fixed structures located on the [OCS]." 43 U.S.C. § 1333(f)

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(1953). In 1978, this grant of authority was amended to apply

instead to "the artificial islands, installations, and other

devices referred to in subsection (a) of this section." 43 U.S.C.

§ 1333(e) (2004). Subsection (a), in turn, extends federal

jurisdiction to:

all artificial islands, and all installations
and other devices permanently or temporarily
attached to the seabed, which may be erected
thereon for the purpose of exploring for,
developing, or producing resources therefrom,
or any such installation or other device
(other than a ship or vessel) for the purpose
of transporting such resources.

Id. at § 1333(a)(1) (emphasis supplied). Appellants argue that the

clause "which may be erected thereon for the purpose of exploring

for, developing, or producing resources therefrom," is restrictive,

and limits the Corps's permitting authority on the OCS to

structures related to the extraction of mineral resources.2 Thus,

they argue, the Corps lacked authority to grant a Section 10 permit

for construction of Cape Wind's data tower. The Corps, on the

other hand, has determined that its Section 10 authority "was

extended to artificial islands, installations, and other devices

located on the seabed, to the seaward limit of the [OCS], by

2
While the term "resources" is not defined in OCSLA,
"exploration," "development," and "production" are all defined in
terms of "mineral," which is in turn defined as "includ[ing] oil,
gas, sulphur, geopressured-geothermal and associated resources, and
all other minerals which are authorized by an Act of Congress to be
produced from 'public lands'." 43 U.S.C. § 1331(k), (l), (m), (q).

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section 4(f) of [OCSLA] as amended." 33 C.F.R. § 320.2(b)

(internal citation omitted).

The district court determined that the "which may be"

clause of Subsection (a) was not restrictive. See Alliance to

Protect Nantucket Sound, Inc. v. United States Dep't of the Army,

288 F. Supp. 2d 64, 75 (D. Mass. 2003) (finding that OCSLA's text

supports the Corps's position that Section 10 jurisdiction extends

to all OCS structures "including, but not limited to, those that

'may be' used to explore for, develop, or produce resources"

(quoting 43 U.S.C. § 1333(a)(1)) (emphasis supplied by district

court)). Thus, the district court held, the Corps has authority to

grant a Section 10 permit for all structures on the OCS, regardless

of their function.

We find the statutory text in question ambiguous. It is

not apparent whether the reference to Subsection (a) inserted into

Subsection (e) in 1978 refers to "all artificial islands, and all

installations and other devices permanently or temporarily attached

to the seabed," 43 U.S.C. § 1333(a)(1), or only to all such

installations used to explore, develop or produce resources. In

light of this ambiguity, the Corps and Cape Wind invite us to defer

to the Corps's interpretation of its authority, see 33 C.F.R.

§ 320.2(b), under the Chevron doctrine. See Chevron U.S.A., Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). In this

case, however, we find it unnecessary to reach the question of

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Chevron deference because legislative history reveals, with

exceptional clarity, Congress's intent that Section 10 authority

under OCSLA not be restricted to structures related to mineral

extraction.3 See id. at 843 n.9 ("If a court, employing

traditional tools of statutory construction, ascertains that

Congress had an intention on the precise question at issue, that

intention is the law and must be given effect."); Strickland v.

Comm'r, ME Dept. of Human Servs., 48 F.3d 12, 19-20 (1st Cir. 1995)

(evaluating legislative history to determine whether Congressional

intent was unambiguously expressed).

In the conference report for the 1978 OSCLA amendments,

Congress explained that the changes to Subsection (e)

were technical only and there was no intent to
change present law. The existing authority of
the Corps of Engineers . . . applies to all
artificial islands and fixed structures on the
[OCS], whether or not they are erected for the
purpose of exploring for, developing, removing
and transporting resources therefrom. The

3
Appellants' argument that the district court erred by elevating
the importance of legislative history to supercede that of the
plain language of OCSLA is without merit in this case. Even were
the text less ambiguous, a reviewing court may consider legislative
history to determine "whether there is clearly expressed
legislative intention contrary to [the statutory] language, which
would require [the court] to question the strong presumption that
Congress expresses its intent through the language it chooses."
INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987)(internal
quotation marks omitted); see also Train v. Colorado Public
Interest Research Group, Inc., 426 U.S. 1, 10 (1976) ("When aid to
construction of the meaning of words, as used in the statute, is
available, there certainly can be no 'rule of law' which forbids
its use, however clear the words may appear on 'superficial
examination.'").

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 amendment . . . is not intended to change the
scope of this authority, but merely to conform
the description of the types of structures, no
matter what their purpose, to the types of
structures listed in subsection (a), namely
all installations and other devices
permanently or temporarily attached to the
seabed. It is not the intention of the
conferees to limit the authority of the Corps
[] as to structures used for the exploration,
development, removal, and transportation of
resources.

H.R. Conf. Rep. No. 95-1474 ("Conference Report") at 82 (1978),

reprinted in 1978 U.S.C.C.A.N. 1674, 1681 (emphasis supplied).4

Appellants suggest that the intent expressed in the above-quoted

language was not that Corps authority be unlimited with regard to

the purpose of the structure in question, but rather with regard to

4
The need to bring the types of structures referred to in
Subsection (e) into agreement with those referred to in Subsection
(a) becomes apparent when one considers the amendments made to the
latter in 1978. The original text of Subsection (a) extended
federal jurisdiction over "all artificial islands and fixed
structures which may be erected thereon for the purpose of
exploring for, developing, removing, and transporting resources
therefrom." 43 U.S.C. § 1333(a) (1953) (emphasis supplied).
Because of the development of relatively impermanent structures,
which did not clearly fall within the "fixed structures" rubric,
Congress amended Subsection (a) in 1978 to apply instead to "all
artificial islands and all installations and other devices
permanently or temporarily attached to the seabed, which may be
erected thereon for the purpose of exploring for, developing, or
producing resources therefrom." See H.R. Rep. No. 95-590, at 128
(1977), reprinted in 1978 U.S.C.C.A.N. 1450, 1534 (emphasis
supplied) (explaining that change in Subsection (a) was made
because "the Committee intends that federal law is . . . to be
applicable to all activities on drilling ships, semi-submersible
drilling rigs, and other watercraft, when they are attached to the
seabed"). The reference to "fixed structures" in the predecessor
of the current Subsection (e), 43 U.S.C. § 1333(f) (1953), was
accordingly revised to refer instead to those structures "referred
to in subsection (a)," 43 U.S.C. § 1333(e) (2005).

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different types of structures within the subset of structures

related to exploring for, developing, removing or transporting

minerals. This interpretation strains the Conference Report

language well beyond the meaning it can bear, especially in light

of Congress's awareness when it amended OCSLA that the Corps had

issued Section 10 permits for OCS structures unrelated to mineral

extraction on several occasions between 1953 and 1978, implying its

approval of the exercise of such jurisdiction. See Conference

Report at 81 ("[The Corps's existing] authority has been used . . .

to regulate the construction and location of . . . artificial

fishing reefs, radio towers, and a proposed gambling casino which

was to be constructed on reefs. It also applies to structures

erected for the purpose of exploring for and transporting resources

. . . ." (emphasis supplied)). Appellants' efforts to counter this

legislative history with language from the Senate Report from the

original 1953 OCSLA that could be read to imply a limitation of

Corps permitting authority to structures intended for mineral

resource development is unavailing. The Corps's current authority

is determined by OCSLA as amended in 1978, and the Conference

Report addresses Congress's intent at that time. See also United

States v. Commonwealth Energy Sys. & Subsidiary Cos., 235 F.3d 11,

16 (1st Cir. 2000) ("The most dispositive indicator of

congressional intent is the conference report.").

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 Congress made clear that "[t]he existing authority of the

Corps . . . applies to all artificial islands and fixed structures

on the [OCS], whether or not they are erected for the purpose of

exploring for, developing, removing, and transporting resources

therefrom." Conference Report at 82. This express legislative

intent is determinative of the scope of the Corps's authority.

Accordingly, we hold that the Corps had jurisdiction to issue a

Section 10 permit for Cape Wind's data tower.

B. Property interest

Appellants argue that the Corps failed to properly

consider Cape Wind's lack of a property interest in the OCS land on

which it sought to build the data tower when it granted the Section

10 permit.

1. Agency regulations

Appellants first argue that the Corps has a regulation,

33 C.F.R. § 325.1(d)(7), that requires that the applicant actually

have necessary property rights in the area of the project and make

an affirmation to that effect. The regulation states: "The

application must be signed by the person who desires to undertake

the proposed activity . . . . The signature of the applicant . . .

will be an affirmation that the applicant possesses or will possess

the requisite property interest to undertake the activity proposed

in the application . . . ." Id. Of course, the regulation does

not say that the applicant must actually possess, or possess in the

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future, the requisite property rights, but only that the applicant

must make an affirmation to that effect.

The Corps responds to appellants' argument by referring

to another of its regulations, which provides that:

A [Corps] permit does not convey any property
rights . . . or any exclusive privileges.
Furthermore a [Corps] permit does not
authorize any injury to property or invasion
of rights or any infringement of Federal,
state or local laws or regulations. The
applicant's signature on an application is an
affirmation that the applicant possesses or
will possess the requisite property interest
to undertake the activity proposed in the
application. The [Corps] will not enter into
disputes but will remind the applicant of the
above. The dispute over property ownership
will not be a factor in the Corps public
interest decision.

33 C.F.R. § 320.4(g)(6) (emphasis supplied); see also Environmental

Assessment and Statement of Findings at 13 (Aug. 19, 2002)

(paraphrasing § 320.4(g)(6) in response to comments about Cape

Wind's lack of property interest).

The Corps indicated in its response to comments about

Cape Wind's lack of a property interest, and articulated more fully

during the course of this litigation, that it deems § 320.4(g)(6)

to require only that it remind applicants of their need to possess

all requisite property interests. In the Corps's view, § 320.4

(g)(6)'s requirement that a "dispute over property ownership will

not be a factor in the Corps public interest decision" applies to

preclude consideration of a dispute over the adequacy of an

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applicant's property interests in the project site. See

Environmental Assessment at 14.

Appellants argued before the district court that the

requirement that applicants affirm possession of the requisite

property interests for the proposed activity, 33 C.F.R. § 320.4

(g)(6), means that such property interests must, in fact, be

possessed by the applicant. Because Cape Wind had no property

interest in the proposed data tower site, nor could it obtain such

an interest under current law, its Section 10 permit application

ought to have been denied. The district court rejected this

argument, deferring instead to the Corps's interpretation that

§ 320.4(g)(6) requires only an affirmation from the applicant,

which Cape Wind provided. According to the district court, § 320.4

(g)(6), as interpreted by the Corps, fit in as "part of a

[regulatory] scheme designed to keep the Corps out of property

disputes." Alliance, 288 F. Supp. 2d at 77. Accordingly, not only

did the regulation relieve the Corps of any obligation to consider

the sufficiency of Cape Wind's property interests, but it precluded

such consideration altogether. Id. at 77-78.

The face of § 320.4(g)(6) evidences the Corps's intent

not to be involved in private property disputes. And as to

disputes over public land, § 320.4(g)(6), by its own terms, says

that a permit does not "convey any property rights . . . or any

exclusive privileges." Thus, the regulation does not purport to

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address disputes over public property, but rather attempts to

insulate the Corps from addressing those disputes. Appellants'

argument that the regulations impose an obligation on the Corps in

a Section 10 case to resolve disputes over the ownership of public

(or private) property is simply wrong.

Even if the regulation did not clearly support the

Corps's interpretation on its face, the Corps's interpretation

would nonetheless be entitled to deference. See Thomas Jefferson

Univ. v. Shalala, 512 U.S. 504, 512 (1994) (holding that agency's

interpretation during administrative adjudication of its own

regulations "must be given controlling weight unless it is plainly

erroneous or inconsistent with the regulation") (internal quotation

marks omitted); South Shore Hosp., Inc. v. Thompson, 308 F.3d 91,

98 (1st Cir. 2002) (deference appropriate where language of

regulations "admits of differing interpretations, and the [agency]

chooses reasonably among them"). Deference would be appropriate

even though the interpretation was offered in a less formal session

than the interpretation in Thomas Jefferson. See Auer v. Robbins,

519 U.S. 452, 462 (1997) (deferring to agency interpretation

contained in amicus brief submitted in dispute between private

parties); see also Christensen v. Harris County, 529 U.S. 576, 588

(2000) (limiting Auer deference to ambiguous regulations); United

States v. Hoyts Cinemas Corp., 380 F.3d 558, 567 (1st Cir. 2004)

(affording "some weight" to Justice Department's interpretation of

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its regulation "even though the Department's gloss is offered only

in a brief rather than in some more formal manner").5

We find that the Corps's reading of § 320.4(g)(6) is a

reasonable one: the regulation's text states first that an

applicant must affirm possession of the requisite property

interests, then that the Corps "will not enter into disputes but

will remind the applicant of the above" -- that is, the Corps will

remind the applicant of its need to possess the requisite property

interest. The regulation next states that "[t]he dispute over

property ownership will not be a factor in the Corps public

interest decision." "The dispute" refers back to the category of

disputes that result in a reminder of the need to obtain all

required property interests. It is reasonable, in this context, to

determine that "the dispute over property ownership" into which the

Corps may not enter includes a dispute over whether the applicant

has acquired all requisite property interests -- that is, a dispute

over the sufficiency of the applicant's property interests.

Further, the goal of preventing the Corps from expending its

5
While deference is not due to interpretations that are "post hoc
rationalizations offered by an agency seeking to defend past agency
action against attack," Auer, 519 U.S. at 462, or to
interpretations that have varied erratically over time, see South
Shore, 308 F.3d at 102, we find neither of these stumbling blocks
in the instant case. The Corps's interpretation was issued
simultaneously with the permit, and so does not appear to be a post
hoc rationalization. Further, the Corps has consistently taken the
position that nothing in Section 10 requires it to resolve property
disputes.

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resources on evaluating the legal question of the sufficiency of

property interests is a reasonable one. This is so whether the

dispute is over the sufficiency of the applicant's interests as

opposed to those of other private property holders in the area, or

as opposed to those of the federal government, especially since the

Corps is permitted to consider the potential impact of the project

on others' property interests during its public interest review.

See 33 C.F.R. § 320.4(a)(1) (listing "considerations of property

ownership" as factor to consider in determining whether, and under

what conditions, to grant permit). Accordingly, we find that the

district court did not err in deferring to the Corps's

interpretation of its regulations and its decision not to evaluate

the sufficiency of Cape Wind's property interests in the OCS.

2. Public interest review

Appellants also argue that the Corps's duty to act in the

public interest required it to consider the effect that granting

Cape Wind's application would have on the federal government's

interest in the OCS. The Corps is not shielded from this line of

attack by its reliance on § 320.4(g)(6). Appellants properly point

out that the Corps must consider, despite § 320.4(g)(6), the impact

of a permit issuance on federal property rights in various ways, as

part of its general public interest review. See 33 C.F.R. § 320.4

(a)(1) (impact of project on "considerations of property ownership"

must be a factor in the Corps's analysis); United States v. Alaska,

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503 U.S. 569, 590-91 (1992) (§ 320.4(g)(6) does not prohibit Corps

from considering effect of proposed port construction on federal-

state boundary in submerged waters, under 33 C.F.R. § 320.4(f)).

Here, as we explain below, the Corps reasonably found that the data

tower's impact on federal property rights would be "negligible,"

Environmental Assessment at 4, and thus appellants' public interest

argument fails.

3. Reliance on Cape Wind's affirmation

Finally, appellants argue that Cape Wind's affirmation

that it possessed the requisite property interests was obviously

false, as there exists no mechanism by which private entities can

obtain a license to construct a data tower on the federally

controlled OCS. The Corps's grant of a Section 10 permit on the

basis of this false affirmation was therefore arbitrary and

capricious, in violation of the Administrative Procedure Act, 5

U.S.C. § 706(2)(A). Again, this line of attack is not deflected by

reference to Corps regulations. Appellants note that agency

decisions based on false factual information run afoul of the

Administrative Procedure Act. See, e.g., Missouri Serv. Comm'n v.

FERC, 337 F.3d 1066, 1075 (D.C. Cir. 2003) ("Reliance on facts that

an agency knows are false at the time it relies on them is the

essence of arbitrary and capricious decisionmaking.").6

6
Indeed, at oral argument, the Corps's attorney stated that if an
applicant sought a permit to build a structure for extraction
purposes under OCSLA and affirmed possession of all requisite

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Appellants' argument hinges on the veracity of Cape Wind's

affirmation, which in turn depends, appellants argue, on whether

authorization in addition to a Section 10 permit is necessary for

construction of the data tower.7 The first part of our opinion

holds that a Section 10 permit is necessary for all structures on

the OCS unless otherwise indicated by law, but does not determine

whether such a permit is sufficient to authorize building on the

federally controlled OCS.

Whether, and under what circumstances, additional

authorization is necessary before a developer infringes on the

federal government's rights in the OCS is a thorny issue, one that

is unnecessary to delve into in the instant case. The data tower

at issue here involves no real infringement on federal interests in

the OCS lands. To start, the structure is temporary, of five

property interests, but was refused a lease by the Department of
the Interior, then the Corps would consider the lack of an Interior
lease and would deny the permit.
7
Congress has established regulatory schemes for certain types of
structures on the OCS. OCSLA itself sets up a system of oil and
gas leases that require both a lease from the Secretary of the
Interior as well as a Corps permit. See 43 U.S.C. § 1331 et seq.
The Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. § 9101
et seq., authorizes the creation of large thermal energy plants by
requiring a license from the National Oceanic and Atmospheric
Administration, while the Coast Guard is authorized to make rules
ensuring safety of navigation. Id. §§ 9111, 9118. The Deepwater
Ports Act of 1975, 33 U.S.C. § 1501 et seq., requires a license
from the Secretary of Transportation in order to authorize
construction of deepwater ports. Id. § 1503. The National Fishing
Enhancement Act of 1984, 33 U.S.C. § 2101 et seq., in contrast,
does not require approval for artificial reefs placed on the OCS
beyond a Section 10 permit. Id. § 2104.

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years' duration, more than two of which have now passed. The tower

is also not exclusive -- it must accept data collection devices

form the government and others, and it must give the data to the

government. The tower is a single structure, and it provides

valuable information that the Corps requires in order to evaluate

the larger wind energy plant proposal. The Corps's public interest

evaluation of the data tower resulted in a finding of "negligible

impact" on property ownership and stated that collection of the

data is in the public interest. Environmental Assessment at 4-5.

It is inconceivable to us that permission to erect a single,

temporary scientific device, like this, which gives the federal

government information it requires, could be an infringement on any

federal property ownership interest in the OCS.

Thus, the question of infringement of federal property

interests is entirely hypothetical in this case. As a result,

appellants' arguments based both on the arbitrary and capricious

provision in the APA and the public interest standards discussed in

Alaska are misplaced. We do not here evaluate whether

congressional authorization is necessary for construction of Cape

Wind's proposed wind energy plant, a structure vastly larger in

scale, complexity, and duration, which is not at issue in the

present action. Our analysis is limited to whether additional

Congressional authorization is necessary for the data tower, which

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does not infringe on any federal property interest, and we conclude

that it is not.

C. National Environmental Policy Act

The Council on Environmental Quality ("CEQ") is

authorized to enact regulations to ensure federal agencies'

compliance with NEPA. See 42 U.S.C. §§ 4342, 4344. Appellants

argue that the Corps violated CEQ regulations by failing to

circulate for public comment a draft EA and FONSI. We evaluate

agency action to determine if it is "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law." 5

U.S.C. § 706(2)(A), (C).

CEQ regulations require that an "agency shall involve

. . . the public, to the extent practicable, in preparing [an EA],"

40 C.F.R. § 1501.4(b), and that "[a]gencies shall . . . make

diligent efforts to involve the public in preparing and

implementing their NEPA procedures[,] . . . provide public notice

of . . . the availability of environmental documents so as to

inform those persons . . . who may be interested or affected," and

"[s]olicit appropriate information from the public," Id. § 1506.6.

Appellants inform us that the Ninth Circuit has held that, under

these regulations, "[t]he public must be given an opportunity to

comment on draft EAs." See Citizens for Better Forestry v. United

States Dep't of Agric., 341 F.3d 961, 970 (9th Cir. 2003) (quoting

Anderson v. Evans, 314 F.3d 1006, 1016 (9th Cir. 2002), opinion

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amended and reissued without change to this section, 371 F.3d 475

(9th Cir. 2004)). Appellees reject this interpretation, citing

contrary precedent from a number of other circuits and noting that

the quoted language in Citizens for Better Forestry was dicta.

Appellees argue that the Corps met the requirement of involving the

public "to the extent practicable" in preparing the EA by issuing

public notice of Cape Wind's application, providing a comment

period that they later extended to over five months, carrying out

two public hearings, noting and responding to public comments in

the EA, and conferring with federal and state environmental

agencies. We agree. Nothing in the CEQ regulations requires

circulation of a draft EA for public comment, except under certain

"limited circumstances." 40 C.F.R. § 1501.4(e)(2).

Appellants argue that one of those circumstances8 applies

to this case: A draft FONSI must be made available for public

comment when "[t]he nature of the proposed action is one without

precedent." Id. § 1501.4(e)(2)(ii). Appellants argue that the data

tower proposal is "without precedent" because Nantucket Sound is a

pristine, undeveloped area and because "there is no precedent for

permitting a privately-owned structure for wind energy, or even

related research, on OCS lands." The Corps, however, determined

8
The other circumstance, when "[t]he proposed action is, or is
closely similar to, one which normally requires the preparation of
an environmental impact statement," § 1501.4(e)(2)(i), has not been
argued to apply in this case.

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that "[t]here is precedent for this type of structure in

Massachusetts's waters," in the form of a data tower in Martha's

Vineyard. Environmental Assessment at 10. The district court

agreed, relying on the Corps's findings that while "[t]here are no

other similar structures or devices in Horseshoe Shoals," a data

tower was permitted in state waters off Martha's Vineyard, and Cape

Wind's data tower was "not inconsistent with other pile supported

structures in the marine environment in Nantucket Sound." Id. at 2;

see Alliance, 288 F. Supp. 2d at 78-79.

We find that the Corps's determination that the data

tower is not without precedent, on the basis of physically similar

structures in nearby waters, was reasonable. We do not agree with

appellants' argument that construction of structures like the data

tower on the OCS without additional authorization from Congress is

without precedent, but even if that were so, it would suggest only

that issuance of the permit is legally unprecedented. The CEQ

regulations, however, are designed to address environmental impact.

Based on the Corps's findings about the existence of similar pile-

driven structures in Martha's Vineyard and near the shore of

Nantucket Sound, we can see nothing unprecedented about the way

this data tower will impact the environment.9 Thus, we find that

the Corps fully complied with its obligations under NEPA and CEQ

9
To the extent that appellants' arguments are concerned with
unprecedented impact of the proposed wind energy plant, that
project is not at issue in the current action.

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regulations to engage with the public in preparing the EA and

FONSI.

II. Conclusion

For the reasons stated above, the judgment of the

district court is affirmed.

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