206 F.3d 920 (9th Cir. 2000), 97-36118, West v. Secretary of DOT

Docket Nº:97-36118
Citation:206 F.3d 920
Case Date:March 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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206 F.3d 920 (9th Cir. 2000)

ARTHUR S. WEST, an individual, Plaintiff-Appellant,



No. 97-36118

United States Court of Appeals, Ninth Circuit

March 20, 2000

Argued and Submitted March 11, 1999

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[Copyrighted Material Omitted]

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COUNSEL: Arthur West, Olympia, Washington, for the plaintiff appellant.

Brian C. Kipnis, John A. Bryson, Tamara N. Rountree, United States Department of Justice, Washington, D.C., for federal defendants-appellees Department of Transportation and Federal Highway Administration; Deborah Cade, Assistant Attorney General, Olympia, Washington, for state defendantappellee Washington State Department of Transportation; George A. Kresovich, Brian D. Todd, Hillis Clark Martin & Peterson, Seattle, Washington, for defendant-appellee Weyerhaeuser Company.

Appeal from the United States District Courtfor the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-96-05453-RJB

Before: Betty B. Fletcher, Stephen Reinhardt, and Sidney R. Thomas, Circuit Judges.

Opinion by Judge B. Fletcher; Dissent by Judge Thomas

B. FLETCHER, Circuit Judge:

Arthur S. West appeals pro se the district court's dismissal of his claims challenging the Federal Highway Administration's ("FHWA") decision to categorically exclude a twostage highway interchange project from review under the National Environmental Policy Act ("NEPA"), 42 U.S.C. S 4332. The district court determined that the FHWA's decision to proceed using a documented categorical exclusion was not arbitrary and capricious. We have jurisdiction pursuant to 28 U.S.C. S 1291. We reverse and remand.


In 1985, the city of DuPont identified the need for a new highway interchange in its Comprehensive Plan, in part to accommodate the traffic demands generated by existing growth and sizeable growth forecast for the area. Intel, a large computer

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chip maker planned to open a DuPont campus, and Weyerhaeuser proposed to build a 3,200-acre master planned unit development called Northwest Landing consisting of residential, commercial, and light industrial uses. In a 1995 Final Supplemental Environmental Impact Statement for its Comprehensive Plan, DuPont considered the environmental impacts of this increased growth pursuant to Washington's Growth Management Act, RCW ch. 36.70A.

To accommodate this increased traffic, the Washington State Department of Transportation ("WSDOT") prepared a Freeway Access Report in October 1995 describing a new highway interchange -the "South DuPont interchange" -at milepost 118 on Interstate 5 ("I-5") between Seattle and Tacoma. In December 1995, the FHWA, which must approve the construction of new access points on the interstate highway system, granted preliminary approval for the new interchange, subject to the state's compliance with applicable federal requirements including the FHWA's environmental review of the effects of the proposed project. See 23 U.S.C. S 111(a).

The WSDOT proposed a two-stage "fully directional interchange" construction project. Stage 1 involved construction of a new interchange at milepost 118 to allow access from I-5 to the main road serving Weyerhaeuser's Northwest Landing Development in DuPont.1 Stage 2, unfunded and not concretely defined, is generally described as the "ultimate interchange" that would upgrade the new Stage 1 interchange, reroute additional connectors and reconstruct an existing interchange adjacent to the new South DuPont interchange, and provide a new gated access to Fort Lewis.

The Final Project Summary prepared by WSDOT for FHWA approval describes an $18.6 million project in which:

Stage 1 construction will include a 4 lane structure over SR5, a northbound on and off ramp, a south bound on and off ramp, plus modification to the Mounts Road Weigh Station ramp. Auxiliary lanes will be constructed between the South DuPont I/C and the existing DuPont I/C northbound and south bound, and between South DuPont I/C and Mounts Rd. I/C southbound.

The Environmental Document prepared for the project by WSDOT explains that:

The major structure (Center Drive overcrossing) will be a bridge crossing over I-5 and the Burlington Northern-Santa Fe Railroad tracks. Two ramp struc tures will provide on and off movements for south bound traffic. A truck ramp will move trucks leaving the existing truck weigh station around the new interchange . . . . Under Stage 1 a loop ramp, and partial utilization of the truck weigh station ramp, will provide on and off movement for northbound traffic. An existing I-5 structure (Fort Lewis laundry railroad spur overcrossing) will require widening. A small structure will provide access over the truck ramp to Center Drive. In Stage 1 this access will be limited to emergency vehicles. In the ultimate con figuration this structure will be widened for two-way traffic and full access to the interchange. Stage 1 auxiliary lanes will be constructed in the southbound and northbound directions . . . .

WSDOT prepared several environmental reports to assess the environmental impacts of the proposed project, including a report on the Fort Lewis landfill,2 an air

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quality report, a cultural resource survey, and a biological assessment for bald eagles and marbled murrelets. No study suggested any significant environmental impact from the proposed project.

West and others raised concerns about the project in a public design hearing in February 1996. In April 1996, the FHWA, the Department of Transportation, and WSDOT released a joint environmental document for the "Interstate 5 South DuPont Interchange." The agencies concluded that the project would not cause significant environmental impacts and satisfied the criteria for a "documented categorical exclusion" under NEPA, and a Determination of Nonsignificance under Washington's State Environmental Policy Act ("SEPA"), RCW 43.21C. These determinations enabled highway construction to begin without further environmental review.

West filed a complaint in district court seeking, in part, a declaration that the interchange is not categorically excluded from NEPA and an injunction requiring work to cease on the project until the agencies prepared an Environmental Impact Statement. The court denied West's request for a preliminary injunction and in an oral decision, dismissed all of West's claims.3 West timely appealed.


We review de novo a district court's order granting summary judgment. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998). We must determine whether the FHWA's decision to approve a documented categorical exclusion satisfied NEPA requirements for a categorical exclusion or whether this action was "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." Administrative Procedure Act, 5 U.S.C. S 706(2)(A). The arbitrary and capricious standard "applies to an agency's determination that a particular action falls within one of its categorical exclusions." Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 (9th Cir. 1996) ("An agency satisfies NEPA if it applies its categorical exclusions and determines that neither an EA nor an EIS is required, so long as the application of the exclusions to the facts of the particular action is not arbitrary and capricious."). Under that standard, we will disapprove of an agency's decision if it made "a clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989).

A. Mootness

Weyerhaeuser contends that we should dismiss this appeal as moot because construction for Stage 1 of the interchange has been completed. A case becomes moot whenever it "los[es] its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law." Hall v. Beals , 396 U.S. 45, 48 (1969). According to the classic formulation, in order to be justiciable, a "controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy, admitting of a specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41 (1937) (citations omitted). As the Ninth Circuit has held, however," [t]he burden of demonstrating mootness is a heavy one." Northwest Envt'l Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631

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(1979); Arnold v. United States, 816 F.2d 1306, 1309 (9th Cir. 1987)).

In Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585 (9th Cir. 1981), we addressed mootness in the context of NEPA. Plaintiffs in Columbia Basin challenged the adequacy of an EIS prepared to review the environmental effects of a proposed power line running across their farmland. Plaintiffs sought to enjoin construction of the power line. Over two years before the case came up on appeal, however, all 191 towers required for the line were erected and the line was placed in operation. Against the claim that construction and operation of the power lines rendered the appeal moot, we said

were this Court to find the EIS inadequate, or the decision to build along Route D-1 arbitrary and capricious, the agency would have to correct the decision-making process, and ultimately could be required to remove the line from this route. Clearly, therefore, this case presents a live controversy with concrete facts, and parties with adverse interests.

643 F.2d at 591 n.1. Most importantly (for purposes of...

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