Reference Guide to Emerging Technologies to Implement NEPA

Several legal tests control the admission of remote sensing data into evidence. In federal courts, these tests are found in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Federal Rules of Evidence (FRE), and the U.S. Constitution. In state courts, these tests are found in state evidence statutes, state constitutions, and the US Constitution. Many state courts also apply tests from Daubert v. Merrell Dow Pharmaceuticals, Inc. or Frye v. United States, depending on the state.

Below is an overview of environmental cases that have used remote sensing data and image as evidence, organized by topic: Air, Water, Wetlands, Land Management, Boundary Disputes.

Air
Chevron USA, Inc. v. US EPA, 658 F.2d 271 (5th Cir. 1981).
Petition was filed seeking review of a determination by the Administrator of the Environmental Protection Agency that wilderness area exceeded the relevant statutory date in that it was a mandatory Class I federal area and subject to visibility protection under the Clean Air Act. The Court of Appeals, Sam D. Johnson, Circuit Judge, held that the determination of the Administrator was neither arbitrary nor capricious. Satellite evidence, although admitted, was inconclusive.

Dow Chemical Co. v. United States, 106 S. Ct. 1819 (1986).
Chemical company brought action for declaratory and injunctive relief against aerial surveillance and photography of its industrial complex by Environmental Protection Agency. The United States District Court for the Eastern District of Michigan, James Harvey, J., entered partial summary judgment in favor of chemical company, but the United States Court of Appeals for the Sixth Circuit, Merritt, Circuit Judge, reversed. On certiorari, the Supreme Court, Chief Justice Burger, held that: (1) EPA had statutory authority to use aerial photography to perform "site inspection" under Clean Air Act, and (2) aerial photography of chemical company's industrial complex was not a "search" for Fourth Amendment purposes. Affirmed.

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Water
United States v. Reserve Mining Co., 380 F. Supp. 11 (D.C. Cir. 1974).
The United States and the State of Minnesota brought an action against a taconite mining and processing company to prevent the company from continuing the discharge of taconite tailings into the waters of Lake Superior. This practice allegedly resulted in the release into the air and water of large amount of minute amphibole fibers said to be a cause of various types of cancer in humans. The District Court, Miles W. Lord, J., held, inter alia, that defendant's discharge of the tailings into interstate and intrastate waters both violated the Federal Water Pollution Control Act and constituted a common- law nuisance both in the waters of Lake Superior and in the ambient air in surrounding communities. Furthermore, in view of the demonstrated threat to the public health and defendant's intransigent refusal to dispose of the tailings by safer alternative means, a decree enjoining further discharge of the tailings was justified despite the adverse consequences that such a decree would have upon the economy of the area. Injunction issued.

United States v. Fisher, F. Supp. 1193 (S.D. Fla. 1997).
United States brought action against treasure-hunting company and its operator under Marine Protection, Research and Sanctuaries Act, alleging that defendants illegally destroyed seagrass in marine sanctuary and removed artifacts. The District Court, Edward B. Davis, Chief Judge, held that: (1) defendants injured and destroyed 1.63 acres of seagrass in violation of Act; (2) defendants removed artifacts from sanctuary in violation of Act; and (3) United States was entitled to permanent injunction. Comparison photographs were introduced into evidence.

Oklahoma Water Resources Board v. Texas County Irrigation and Water Resources Association, 711 P.2d 38 (OK 1984).
In a case involving groundwater elimination, the Oklahoma Supreme Court reversed the lower courts decision to grant an oil company a permit to withdraw groundwater for an oil recovery process. In reversing the decision the court noted the problem of groundwater being drained faster than it is being replaced. The court also noted that Texas has the same problem and they have developed a technique using satellite imagery to get precise estimates of the depletion of the water table. In relation, Oklahoma has done nothing to try and remedy the problem.

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Wetlands
St. Martin v. Mobil Exploration & Producing US Inc., 224 F.3d 402 (5th Cir. 2000).
Plaintiffs introduced aerial photographs to show open ponds produced by the oil companies that were eroding their marsh, presenting a series of photographs that showed the progression of the deterioration of the marsh. These aerial photos, combined with testimony from an expert witness interpreting the photographs, and testimony from the plaintiffs and others familiar with the land, led the court to conclude that defendants caused the degradation to the land.

Part 303, Wetland Protection of the Natural Resources and Environmental Protection Act, 2000 Mich. ENV. LEXIS 14.
Petitioner applied for a permit under part 303 of the administrative rules for development of a residential subdivision.The permit was granted and the EPA objected.Satellite photos were introduced to show the development and the surrounding wetlands. The Michigan Department of Environmental Quality granted the permit so long as the wetland mitigation plan is followed.

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Land Management
Nickel Plate Mining Co. v. Office of Surface Mining Reclamation and Enforcement, Case No. NX5-122-R (Dep't Interior 1987).
Plaintiff sought review of a Notice of Violation (NOV) issued by the Office of Surface Mining Reclamation and Enforcement (OSMRE). The NOV was issued for "'failure to return disturbed area to its approximate original contour' in violation of 30 C.F.R. § 715.14(a) and (b)." OSMRE attempted to prove their case through the use of a photogrammetrist who created maps using aerial and satellite photography. The evidence was admitted, but the court gave greater weight to Nickel Plate's witnesses because they had actually seen the area first-hand, while OSMREs witnesses all had relied on maps and photographs.

Wetsel-Oviatt Lumber Co. v. United States, 40 Fed. Cl. 557 (1998).
The US Forest Service canceled a proposed timber sale because of the negative effects it would have on the environment. The area was evaluated using satellite and aerial photography. However, the court did not rely on this evidence. The court found several flaws in the assessments; one being that the forest service failed to ground truth the information. The court concluded that the forest service cancellation of the timber sale was arbitrary and capricious.

Nutra Sweet Co. v. X-L Engineering Co., 227 F.3d 776 (7th Cir. 2000).
Plaintiffs in this Superfund case used aerial photographs to determine the history of the dumping at a hazardous waste site. The photos confirmed the dumping sequence in which Volatile Organic Compounds (VOCs) were dumped on X-L's land and then migrated though the groundwater onto Nutra Sweet's land. Nutra Sweet used this evidence as well as other tests to prove that X-L Engineering was responsible for the dumping and the court affirmed the decision for the plaintiff.

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Boundary Disputes
I&M Rail Link v. Northstar Navigation, 21 F. Supp.2d 849 (N.D. IL 1998).
Satellite photos helped determine whether a barge accident occurred in Illinois or Iowa to determine whether a court had personal jurisdiction over a defendant. Infrared aerial photography helped to determine if the State of New Jersey claimed title to a substantial part of plaintiff's land as tide-flowed riparian lands.

Velsicol Chemical Corp. v. State of New Jersey, DEP, 442 A.2d 1051 (N.J. 1982).
Aerial photography was dispositive on a land acreage discrepancy.

In re Vernon Sand & Gravel, Inc., 93 B.R. 580 (Bkrtcy. ND Ohio 1988).
Debtor objected to proof of claim filed by Ohio Department of Natural Resources. The Bankruptcy Court, William T. Bodoh, J., held that state was entitled to recover, as "administrative priority expense," any environmental reclamation costs incurred by state as request of debtor's postpetition surface mining activity. Aerial photographs were found to be dispositive on the question of a discrepancy as to the acreage of land involved. So ordered.

Gasser v. United States, 14 Cl.Ct. 476 (1988).
This suit for compensation was based upon the Fifth Amendment to the Constitution of the United States. Plaintiffs, owners of property interests in Baja California, Mexico, alleged that the construction and operation of Hoover Dam and Glen Canyon Dam in the United States resulted in a substantially reduced flow of water in the Colorado River, causing the development of a sediment blockage below their properties. They alleged that the river has either directly overflowed their land, or caused elevated groundwater conditions, resulting in the taking of a permanent flowage easement. After trial and a thorough examination of the record, the court concluded that plaintiff Jesus Mosqueda's property was taken but that plaintiff Gordon Bailey's was not. Aerial and satellite photographs introduced at trial detailed the progress of channel development subsequent to 1935.

Case Concerning the Frontier Dispute, 1986 ICJ 554.
Border dispute between Mali and Burkina Faso. Dispute involved riverbed that had geographically shifted from when the border was set during colonial period. Experts testifying partially relied on maps rendered from satellite photographs. Parties agreed to three experts to assist in demarcation.

Kasikili/Sedudu Island (Botswana/Namibia), 1999 ICJ.
Dispute between Botswana and Namibia regarding the boundary between Namibia and Botswana around The uninhabited Kasikili Island (referred to as Sedudu Island in Namibia) is located in the Linyanti (Chobe in Namibia) River, and the legal status of the island. Prior agreement defined the boundary as running along the main channel of the Linyanti River. The countries contested which of two channels was the main channel, as defined by parameters including depth and width of the channel, the rate of flow of the river, bed profile, and navigability. Experts introduced Landsat satellite data to help define the width and depth of tShe channel. Aerial photography was also used in the case. The Court found that Kasikili/Sedudu Island forms part of the territory of the Republic of Botswana.

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The materials on this Web site were developed by Ken Markowitz as part of a presentation at the ALI-ABA Course of Study: Environmental Impact Assessment: NEPA (National Environmental Policy Act) and Related Requirements, December, 2001, Washington, DC.