Our tribal challenge to GSA concerning SFAAP

[hdqrs@worldnet.att.net]

Our tribal challenge to the General Services Administration, Environmental
Assessment (EA) Report and Proposed Finding of No Significant Impact
(FONSI), concerning the disposal of the Sunflower Army Ammunition Plant,
(SFAAP) published on February 11, 1999.

UNITED TRIBE OF SHAWNEE INDIANS
P. O. BOX 505
SHAWNEE RESERVE 206
DE SOTO, KANSAS 66018-0505
913.583.3236

March 8, 1999

Ms. Donna Meyer
U. S. General Services Administration
230 South Dearborn Street, Room 3756
Chicago, IL 60604

Dear Ms. Meyer:

The purpose of this letter is to:

1.  Challenge the General Services Administration, Environmental
Assessment (EA) Report and Proposed Finding of No Significant Impact
(FONSI), published on February 11,1999, which concerns the proposal to
dispose of the Sunflower Army Ammunition Plant (SFAAP); and

2. Demand that an environmental impact statement (EIS) be performed before
such proposal is carried out; and

3. Establish a record of challenge by the United Tribe of Shawnee Indians
before the GSA.

The United Tribe of Shawnee Indians herein claims that the proposed
disposition of SFAAP is a major federal action with significant impact on
the quality of the human environment and, in accordance with the National
Environmental Policy Act (42 U.S.C.A. ' 4332) and the regulations of the
Council on Environmental Quality (40 C.F.R. ' 1501 et seq), this
necessitates the preparation of detailed EIS.

More particularly:

1. The GSA is making a disposition that is discretionary in its overall
concept, as well as discretionary in the details.  This distinguishes this
case from ministerial cases where there is no opportunity for discretion
or improved agency decision-making and, thus, no requirement for an EIS.  
See e.g. South Dakota v. Andrews 614 F. 2d. 1190 (8 Cir. 1980).

The Court there stressed, however, that even in ministerial cases NEPA
applies to actions which enable private parties to act so as to
significantly affect the environment, 614 F2d at 1194.  When the agency
retains discretion to reserve, condition, or retain any interest in the
land to be conveyed, as GSA does in this case, its even clearer that an
EIS is required.  See Restore: The North Woods v. United States Department
of Agriculture, 968 F. Supp. 168, 174 (D. Vt. 1997).

2. The United States is making disposition of land that will enable a
change of the status quo, rather than a preservation of it. GSA, in its
Draft FONSI, intimates that the transfer involves only title, that the
status quo will not change, and that future development or reuse will be
under state and local control and not causally related to the federal
transfer.  There are cases where NEPA does not apply because the reuse
after transfer will necessarily be the same and, thus, the status quo is
necessarily maintained. See National Wildlife Federation v. Espy, 45 F.
3d. 1129, 1143-44 (9 Cir. 1995). This case, however, is decidedly
different.  The GSA is proposing to dispose of over 9,000 acres, much of
which the recipients plan to sell or lease for development.  Though the
GSA action does not necessarily control such reuse, it necessarily and
proximately enables it to take place.

3. The GSA's FONSI suggests that any impacts from reuse would be
beneficial ones and somehow this obviates the need for an EIS.  The NEPA
case law is very clear that federal leases and sales that contemplate or
facilitate redevelopment must discuss the social, economic, and fiscal
impacts, even if on balance the project is a favorable one.  Even if a
project is predominantly positive, there may be impacts that could be
avoided through the expanded analysis that NEPA demands.  Better
decision-making and better projects are goals of NEPA, along with the
amelioration of gross environmental harms.  See Robertson v. Methow Valley
Citizen's Council, 490 U.S. 332, 339-345 (1989).  See 40 C.F.R. ' 1508.8,
1502.16.

4. NEPA has consistently applied to GSA land disposals. See Conservation
Law Foundation of New England v. General Services Administration, 707
F.2nd. 626 (1st Cir. 1983), where GSA did not even dispute that the
disposal of 3,200 acres of surplus property (one-third of the amount of
the SFAAP case) was a major federal action requiring the preparation of an
EIS, 707 F.2d. at 631.  See also Rhode Island Committee on Energy v.
General Services Administration, 397 F. Supp. 41 (D.R.I. 1975).

5. The test for review of a FONSI in the Tenth Circuit is one of
"arbitrariness or capriciousness".  See Sierra Club v.  Logan, 949 F.2d.
362, 368 (10 Cir. 1991). It is submitted that the decision of the G.S.A.
to issue a FONSI with respect to the proposal for disposal of SFAAP is
arbitrary and capricious and that an EIS should be filed.  See Coalition
for Canyon Preservation v. Slater - F. Supp. 2d -, 1999 WL. 44180 (D.
Mont. 1999);  Mullin v. Skinner, 756 F. Supp. 904 (E.D.N.C. 1990);  
Sierra Club v. Marsh, 769 F. 2d. 868 (1. Cir. 1985).

6. As an additional consideration, it is noted that the environmental
assessment for the SFAAP transfer is not clear about whether CERCLA is
involved.  If there are, on SFAAP, hazardous substances that fall under
CERCLA, then 42 USCA' 9620(a)(1) provides that the GSA is subject to the
same responsibilities as a nongovernmental entity.  A contract for sale
offered by the federal government must contain a covenant warranting that
all remedial action necessary to protect human health and the environment
has been taken before the date of such transfer. (42 USC '
9620(h)(3)(A)(I).  This and other CERCLA issues were not adequately
discussed in the environmental assessment, and were not mentioned in the
Draft FONSI.

It is submitted that an attempt to sell the SFAAP without a completed
clean-up in the hope that future development will generate the revenue to
fund the clean-up is:  a)  speculative, at best; b) an attempt by the
government to evade environmental clean-up responsibility that amounts to
a major federal action with significant impact on the quality of the human
environment, thus necessitating an EIS; and, c) a possible violation of
CERCLA.  See Conservation Law Foundation, Inc. v. Department of the Air
Force, 864 F. Supp. 265, 289-93 (D.N.H. 1994).  An environmental
assessment and a Draft FONSI that fail to deal with a plan to clean up
SFAAP and a covenant to assure this, do not represent a "hard look"  at
the environmental issues stemming from the federal proposal and are,
therefore, arbitrary. See Coalition for Canyon Preservation - F. Supp.  
2d. - 1999 WL 44108 (D. Mont. 1999).

7. To the extent that GSA and the Department of Defense have a mandated
responsibility to restore the environment at SFAAP under 10 USCA ' 2701,
the proposal to transfer the parcel and, in essence, delegate the
responsibility of clean-up to a state or private entity, amounts to the
type of inaction (or dereliction)  that has been held to call for an EIS.  
See 40 CFR ' 1508.18;  See Ramsey v. Kantor, 96 F. 3d. 434, 445 (9 Cir.
1996).

8. It is worth noting that the United States District Court in Kansas and
the Tenth Circuit Court of Appeals have recently shown their concern for
attempts at evading NEPA EIS obligations by artificially minimizing or
removing the federal agency presence in an action with obvious ultimate
impact on the environment and Indian cultural interests.  See Ross v.
Federal Highway Administration, 972 F. Supp. 552 (D. Kan. 1997), affd. 162
F. 3d. 1046 (10 Cir. 1998), where it was held that the attempted federal
withdrawal from the funding of a controversial segment of the South
Lawrence Trafficway did not defederalize the project and did not dissipate
the obligation to file an EIS.  See 162 F. 3d. at 1053.  Likewise in this
case, an attempt to trivialize the federal discretionary role in the
transfer of SFAAP by calling it a mere administrative transfer of title,
is equally unavailing.  The federal role and the impact are significant,
major, and necessitous of a full EIS.

UNITED TRIBE OF SHAWNEE INDIANS

            /S/

Jimmie D. Oyler, Principal Chief

cc:	The Honorable David I. Barram, Adm.
	General Services Administration
	18th and F Street, NW
	Washington, DC 20405

	Mr. I. Blaine Hastings
	Senior Realty Officer
	Real Estate Disposal Division 7PE-6
	1500 Bannister Road
	Kansas City, MO 64131-3088

	Mr. Steven R. Wharton
	Environmental Scientist
	U. S. Environmental Protection Agency, Region VII
	726 Minnesota Avenue
	Kansas City, KS 66101

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