We disagree with the Coalition's position and hold that this case "fits well within the classic exception to the mootness doctrine for disputes which are 'capable of repetition, yet evading review.' " Thomas v. Bennett, 856 F.2d 1165, 1168 (8th Cir.1988) (citations omitted). In the absence of a class action, the capable of repetition exception applies if "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Murphy v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982); Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975). We are satisfied that both of these conditions have been met.

St. Louis County has purchased, and still owns the proposed stadium site. In addition, it represents to this court that it is actively pursuing stadium development for Riverport and is seeking a National Football League expansion franchise to locate there. These representations, standing alone, may not be sufficient to support a finding that there is a present, live controversy between the parties, but when considered in overall context it becomes clear that such a controversy does indeed presently exist. Cf. Cedar-Riverside Environmental Defense Fund v. Hills, 560 F.2d 377 (8th Cir.1977) (but for intervening municipal legislation, promoter's express intent to seek financing and developer's intent to proceed with construction would have been sufficient to present a live controversy).

There is more than a reasonable likelihood that the Coalition, or those having identical interests, will pose continuing legal challenges to prevent construction of the proposed stadium. The Coalition does not dispute that it, or those in privity with it, have already challenged the proposed stadium in three separate lawsuits, and that they have organized a "No Dome" committee in opposition to the proposed stadium. Furthermore, the Coalition admits that there is "concerted, unanimous opposition of the business and civic leaders of the St. Louis Community" to construction of a stadium anywhere but in downtown St. Louis.

If we were to hold this case moot now, the very real prospect of litigation would hang like a dark cloud over the negotiations between St. Louis County and potential NFL franchisees. The defendants note that the sixteen-month reevaluation and the lengthy district court proceedings have already contributed to the loss of the Cardinals Franchise. By using the threat of protracted litigation, calculated to have the maximum disruptive effect on negotiations, the Coalition would be able to accomplish indirectly what it has not been able to achieve directly in the proceedings below. And it would be able to do so time and again without judicial review because, according to the Coalition's argument, each time it succeeded in scaring off a potential franchise the case would again become moot.

Moreover, the Corps' reevaluation was concerned only with the potential environmental effects of a generic, domed stadium. The Corps' decision that a domed stadium would have no impact on the environment materially different from the proposed industrial park did not depend on the Cardinals or any other specific team inhabiting that stadium. The Corps has ruled that its 1985 permit does not foreclose construction of a stadium; the defendants intend to build a stadium and the Coalition intends to oppose it. The Cardinals' departure does not alter this set of circumstances, and it does not moot this case. There is, accordingly, a present, live controversy before us. E.g., Thomas v. Bennett, supra; Clark v. Brewer, 776 F.2d 226 (8th Cir.1985); In re Martin, 761 F.2d 472 (8th Cir.1985); Terry v. Penn Central Corp., 668 F.2d 188 (3rd Cir.1981).

The Coalition argues that the administrative "record" on which we must base our review is the MFR issued by the District Engineer to record the results of his evaluation. And, because the MFR does not contain a "convincing statement of reasons why potential environmental effects are insignificant," the Corps' decision not to prepare an EIS must be found to be unreasonable. As a corollary to that argument, the coalition complains also that the district court erred in allowing testimony to "explain" the MFR because it was tantamount to post-hoc rationalization which defeats NEPA's purpose of insuring informed, well-considered environmental decisions before the fact. These arguments are easily rejected.

Both of the Coalition's arguments are premised upon the false assumption that our judicial review is limited to an examination of the six-page MFR. However, the question before us is not, as the Coalition urges, whether the MFR contains the requisite convincing reasons to stand on its own, but whether, under the appropriate standard of review, the determinative finding in the MFR is sustainable on the administrative record made. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S. Ct. 1241, 1244, 36 L. Ed. 2d 106 (1973). And that record includes the MFR, the EA and the full ten volumes of documents compiled during the Corps' reevaluation process.

In attempting to sort out and wade through the voluminous administrative record, it was not an abuse of the district court's discretion to allow testimony of an explanatory nature. Sierra Club v. U.S. Army Corps of Engineers, 771 F.2d 409, 413 (8th Cir.1985) (citations omitted). The district court did not attempt to try the administrative proceedings de novo, but properly confined its inquiry to the question of whether the Corps' decision was reasonable, based upon the administrative record. See 678 F.Supp at 800 (The question is whether a reasonable person could reach the same result the Corps reached on the same evidence.) (emphasis added). Since the district court did not create a "new record" on which to base its findings, we find no error. Sierra Club, supra.

With respect to the state of the record, the Coalition argues that the district court erroneously denied its motion to compel the Corps to produce requested documents. The documents in question concern certain intra-agency recommendations and preliminary decisions made by agency personnel in connection with the Corps' 1985 decision that an EIS need not be prepared. But because the propriety of the original permit was not before the district court, we find no abuse of discretion in denying the Coalition's discovery motion.

The Coalition presented its challenge to the original permit in an earlier lawsuit referred to herein as Riverport I. See 678 F. Supp. at 796. In that case the Coalition's claims regarding the domed stadium were dismissed without prejudice because the Corps had not yet completed its reevaluation. However, "all claims" against the original permit were dismissed with prejudice pursuant to a consent decree signed by the parties and approved by the court.8 As a result, the Coalition is barred by principles of res judicata from asserting claims related to issuance of the original Riverport permit. See Brooks v. Barbour Energy Corp., 804 F.2d 1144 (10th Cir.1986) (settlement agreement approved by court with prejudice is res judicata to later lawsuit based on same occurrence). The documents the Coalition would have included in the record did not concern the question considered by the Corps on reevaluation--whether there would be a significant increase in the scope of the permitted activity--but rather concerned the wisdom of the Corps' initial decision to issue a permit. It was well within the district court's discretion to refuse to compel their production.

NEPA requires preparation of an EIS only if the responsible federal agency determines in the first instance that a "major federal action" will "significantly affect the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C); Ringsred v. Duluth, 828 F.2d 1305, 1307 (8th Cir.1987); Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 204 (8th Cir.1986). The Corps presumed in this case that issuance of a Section 404 permit was a major federal action.9 678 F.Supp. at 799. But it determined from its original evaluation and EA that granting the Section 404 permit for the originally proposed Riverport project would not have a significant effect on the quality of the human environment. And, on reevaluation, the Corps concluded that the addition of a domed stadium to Riverport would not alter that determination since the addition would not have an environmental impact materially different from the originally proposed commercial-industrial-retail park. Accordingly, an EIS was never prepared and the Corps decided that the addition of a stadium did not require the original permit to be revoked, suspended or modified.10 The Coalition takes exception to these decisions and argues that NEPA required preparation of an EIS under the facts of this case.

The standard under which we review an agency's decision that preparation of an EIS is not required by NEPA is well settled. The initial burden of proof is upon the challenging party to demonstrate that there were facts omitted from the administrative record which, if true, would show that the permitted project could have a substantial impact on the environment. Ringsred v. Duluth, supra at 1307; Olmstead Citizens for a Better Community, supra at 204; Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836, 101 S. Ct. 110, 66 L. Ed. 2d 43 (1980); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.1974) (en banc). If such facts are established, and they are of sufficient significance to warrant shifting the burden of proof, the agency must then demonstrate that its negative determination was reasonable under the circumstances. Id. The test is one of reasonableness--not whether the agency's determination was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Minnesota Public Interest Research Group, supra at 1320.

NEPA is an essentially procedural act designed to insure that the responsible federal agencies make fully informed and well-considered environmental decisions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460 (1978); Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S. Ct. 497, 499, 62 L. Ed. 2d 433 (1979). It does not require that agencies reach decisions that we, as judges, would have reached had we been members of the decision-making unit of the agency. Id. Rather, the court's only role is to insure that the agency has considered the environmental consequences before taking action. Strycker's Bay, supra 444 U.S. at 227, 100 S. Ct. at 499; Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S. Ct. 2718, 2730, n. 21, 49 L. Ed. 2d 576 (1976). Thus, if the challenging party is unable to meet its initial burden of proof--to demonstrate that the agency failed to consider facts which, if true, would show that the permitted project could have a substantial effect on the environment--we need not reach the question of whether the agency's decision not to prepare an EIS was reasonable.

The record demonstrates that the Coalition failed to sustain its burden. The sheer volume of the administrative record in this case is evidence that the Corps gave environmental effects the type of consideration required under NEPA. Baltimore Gas & Electric Co. v. NRDC, Inc., 462 U.S. 87, 98, 103 S. Ct. 2246, 2252, 76 L. Ed. 2d 437 (1983). But of more importance is what the record shows. The Corps considered twenty-eight different environmental and other impacts potentially associated with the proposed stadium. 678 F. Supp. at 801. This consideration took into account the views of the Coalition and its experts, private organizations, the Environmental Protection Agency, the Fish and Wildlife Service, the Emergency Management Agency, the National Park Service, the Missouri Department of National Resources, the Missouri Department of Commerce, the Missouri Highway Traffic Commission, the Missouri Attorney General's Office and the officials of surrounding municipalities. In all, the Corps reviewed twenty-two depositions, thousands of documents and held what amounted to a "seven-month public hearing." 678 F. Supp. at 796-97.

On the surface the Coalition appears to argue that the Corps did not fully consider traffic and safety impacts, air pollution, surface runoff, cumultive impacts of related developments, controversial effects, alternatives to the Riverport site and economic impacts. On closer examination, however, these arguments actually take issue with the "correctness" of the Corps conclusions, not with the procedural adequacy of the Corps' consideration. See Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 207, n. 8 (8th Cir.1986) (the question is whether an agency "considered" environmental effects, not the "correctness" of the decision). The record is replete with evidence that each of these issues was before the Corps. As to most of the issues raised, there was testimony from not only the Coalition's own experts but from neutral government agencies. In any event, the record does not support the assertion that the Corps failed to fully consider these impacts. Because the Coalition has failed to meet its threshold burden in this regard, we need not address the matter further.

The last argument advanced by the Coalition on this appeal is that the stadium proposal is unlawful in three respects. First, the Coalition claims that the proposed stadium exceeds the activities authorized by the Section 404 permit which allows filling of wetlands incident to construction of an "industrial park." We agree with the defendants' contention that this argument is frivolous. The activity permitted by the Corps is not the construction of an industrial park or a stadium; it is the filling of wetlands necessary to construct an 800-foot section of the levee. The substitution of a stadium for some unspecified industrial facility does not change the scope of that activity. Moreover, the original EA contemplated that "entertainment facilities" would be a part of Riverport. Clearly, a football stadium is an entertainment facility.

Second, the Coalition argues that the proposed stadium is prohibited by a local zoning ordinance. But the Coalition does not allege that deviation from the local ordinance will necessarily affect the "quality of the human environment." Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 207 (8th Cir.1986). "In other words, to the degree that a given zoning ordinance reflects social and economic, rather than ecological, considerations, uses contrary to the ordinance do not implicate the concerns underlying NEPA." Id. Because the Coalition does not allege that the zoning ordinance is premised on ecological considerations, it has not stated a claim cognizable under NEPA. And because the Section 404 permit expressly provides that it "does not obviate the requirement to obtain state or local assent required by law," the alleged zoning violation has no relevance to our decision.

Finally, the Coalition claims that the proposed stadium violates the air pollution standards set forth in the Missouri State Implementation Plan for Ozone (SIP). See Environmental Protection Agency Regulations at 40 C.F.R. Sec. 51.18(a) (1986). This argument is without merit. The Corps specifically asked the Environmental Protection Agency (EPA), which is charged with the responsibility for implementing the Clean Air Act, 42 U.S.C. Sec. 7401, et seq., whether automobile emissions associated with the proposed stadium were regulated by the Missouri SIP. The EPA responded in the negative. Moreover, the state agency which implements the SIP raised no objections related to air pollution even though it expressed concern with respect to five other environmental issues. We find under these circumstances that the Coalition has shown no violation of NEPA or the Clean Air Act.

Accordingly, the judgment of the district court is affirmed.

FAGG, Circuit Judge, dissenting.

I believe the dispute we are called on to decide in this case has become moot.

The United States Army Corps of Engineers (the Corps) determined that altering the Riverport project plans to include a domed stadium did not require the Corps to change its earlier permit allowing St. Louis County to develop the project without an environmental impact statement. The court suggests the Corps' decision "was concerned only with the potential environmental effects of a generic, domed stadium [and] * * * did not depend on the Cardinals or any other specific team inhabiting that stadium." Ante at 1030. I disagree.

The Corps' Riverport permit decision was triggered by the presence and real commitment of the St. Louis Cardinals football team. With the relocation of the football Cardinals while this appeal was pending, and with no replacement football team on the horizon, the factual predicate for the Corps' administrative decision no longer exists. Due to this change in the essential nature of the dispute that precipitated the Corps' challenged action, I believe the appeal before us presents a purely abstract question and not a live case or controversy.

I also disagree with the court's assessment that the circumstances of this case fit within the exception to the mootness doctrine for controversies that are " ' "capable of repetition, yet evad[e] review." ' " Ante at 1029 (quoted citations omitted). I have no quarrel with the idea that this controversy may resurface in the years to come. Even so, I see nothing about the process for obtaining the Corps' decision (one way or the other) on the environmental impact statement that makes the process so transient that its "short duration" will inherently escape judicial review. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975) (per curiam). On the contrary, if the county attracts another professional football team to occupy a domed stadium within the original Riverport project, there will be ample opportunity for the parties to seek review of an administrative decision that will then be based on current facts and circumstances.

To allow review now on a theory that "a football team is a football team is a football team" in my view ignores the true character of this facet of the project as it was submitted to the Corps--that a professional football franchise was then ready and financially prepared to occupy the stadium under specific conditions. I am not willing at this point to presume those conditions had no effect on the Corps' permit decision or that different variables some time from now likewise will have no impact on future Corps permit determinations.

In sum, the football Cardinals are out of the Riverport project picture, and there is no understudy "anchor tenant" waiting in the wings. Obtaining a replacement team that is willing to commit itself to a domed stadium within the Riverport project is currently a matter of conjecture at best, see SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 406, 92 S. Ct. 577, 579, 30 L. Ed. 2d 560 (1972). The key reason for considering a variance from the Corps' original permit has disappeared. Consequently, the specific dispute that was put before the Corps by the supporters and opponents of a domed stadium is now moot. This being so, I would remand the case to the district court for an order directing the Corps to vacate its challenged permit decision. See A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 329, 331, 82 S. Ct. 337, 340, 341, 7 L. Ed. 2d 317 (1961); Hollister Ranch Owners' Ass'n v. FERC, 759 F.2d 898, 901-02 (D.C.Cir.1985).