Laguna Greenbelt, Inc. v. U.S. Dept. of Transp.
| Citation | 42 F.3d 517 |
| Decision Date | 20 December 1994 |
| Docket Number | No. 94-55757,94-55757 |
| Parties | 25 Envtl. L. Rep. 20,349 The LAGUNA GREENBELT, INC., a California Non-Profit Corporation; The Laguna Canyon Conservancy, a California Non-Profit Corporation; Stop Polluting Our Newport, a California Non-Profit Corporation; Save Our San Juan, a California Non-Profit Corporation, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Secretary of the United States Department of Transportation; Federal Highway Administration; Administrator of the Federal Highway Administration; Regional Administrator, Region IX, of the Federal Highway Administration; San Joaquin Hills Transportation Corridor Agency, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Dissolving Injunction Dec. 20, 1994.
Joel R. Reynolds, Natural Resources Defense Council, Inc., Craig S. Bloomgarden, Heller, Ehrman, White & McAuliffe, Los Angeles, CA, Mark I. Weinberger, Shute, Mihaly & Weinberger, San Francisco, CA, for plaintiffs-appellants.
Ellen J. Durkee, John T. Stahr, U.S. Dept. of Justice, Washington, DC, for federal defendants-appellees.
John J. Flynn III, Robert D. Thornton, Nossaman, Guthner, Knox & Elliott, Irvine, CA, for defendant-appellee San Joaquin Hills Transp. Corridor Agency.
Appeal from the United States District Court for the Central District of California.
Before: FEINBERG, * SCHROEDER, and KOZINSKI, Circuit Judges.
Appellants' petition for rehearing is denied. This court's injunction is dissolved forthwith. Appellants' suggestion for rehearing en banc will be considered in due course.
The opinion filed on December 2, 1994 is hereby amended as follows:
The Laguna Greenbelt, Inc., The Laguna Canyon Conservancy, Stop Polluting Our Newport, and Save Our San Juan are four non-profit community organizations (collectively "Laguna") that appeal the district court's grant of summary judgment in favor of the U.S. Department of Transportation, the Federal Highway Administration (FHA), and the San Joaquin Hills Transportation Corridor Agency (TCA). Laguna contends that the FHA violated the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321 et seq., by approving the Environmental Impact Statement (EIS) for the tollroad and by failing to prepare a Supplemental Environmental Impact Statement (SEIS) to address the effect of wildfires that broke out in the Laguna Greenbelt region after the EIS was approved. Laguna further contends that the FHA violated section 4(f) of the Transportation Act, 49 U.S.C. Sec. 303(c), which governs the use of parkland for transportation projects.
The San Joaquin Hills transportation corridor, as approved by the FHA, is a proposed 17.5 mile highway that will run parallel to the Pacific coastline from Newport Beach to San Juan Capistrano, California, where it will connect with Interstate 5. The corridor is the first highway of its type in California to be financed without any federal funding and with limited state funding. It will operate as a tollroad only until construction bonds are paid off. The federal appellees' interest in the project arises solely from the highway's connection with Interstate 5.
The tollroad is designed to relieve traffic congestion and high levels of air emissions on the freeway system and on local arterial highways in south Orange County. Between 1950 and 1989, the population of Orange County grew by 2.1 million, while only four miles were added to the freeway system in the 16 years preceding 1990. The tollroad will consist of six general use lanes, two high occupancy vehicle lanes for buses and carpools, and a median varying from 88 to 116 feet wide for future rail transit use. A five-foot chain-link fence will run the tollroad's entire length, hindering movement across the road by most wildlife species. Grading for the tollroad will cut a strip up to 1,300 feet wide in places and require movement of over 40 million cubic yards of earth, significantly altering the topography and appearance of the land.
Approximately five miles of the tollroad (the middle section) will bisect a 16,000 acre undeveloped area in the San Joaquin and Sheep Hills of coastal Orange County called the Laguna Greenbelt. The tollroad will also use 1.7 acres of the University of California, Irvine Ecological Reserve (the "reserve"). The Greenbelt is the last significant open space in Orange County and possesses ecological, recreational and scenic value. It consists of parks, recreational areas and wildlife preserves, and encompasses eight coastal canyons, a permanent stream and the only natural lakes in Orange County. The Greenbelt includes a stand of coastal sage scrub, which serves as a habitat for the Coastal California Gnatcatcher (a species of bird listed as threatened under the Endangered Species Act), as well as for several sensitive species currently or previously under review for listing, including the Coastal Cactus Wren, the California Mastiff Bat, the San Diego Coast Horned Lizard and the Orange-Throated Whiptail Lizard. Rare or endangered plants, such as Orange County Turkish Rugging and Many-Stemmed Dudleya, have also been found in the region.
Since at least 1976, Orange County and the cities along the proposed corridor route have evaluated transportation options in the region and included the corridor in their long-range planning documents. Some parklands were planned and acquired in transactions that reserved the corridor right of way or required dedication of land for the corridor.
Three state Environmental Impact Reports (EIR) were prepared prior to the joint federal EIS/state EIR at issue here. 1 In response to the third state EIR, the cities of Newport Beach and Irvine proposed reducing the number of lanes from 12 to a maximum of eight, including high occupancy vehicle lanes, and reserving space in the median for rail transit. The proposal was adopted.
In September 1990, a draft of the EIS and section 4(f) analysis at issue here was released for public comment. The Environmental Protection Agency (EPA) gave the document a low rating for failure to provide enough information to adequately assess significant environmental impacts. The U.S. Fish & Wildlife Service (FWS) and the California Coastal Commission also criticized the document. In response, the FHA engaged in further consultation with the agencies, including additional assessments of the air quality and growth-inducing effects of the corridor, the biological impact of the corridor on a pair of Least Bell's vireos (an endangered bird species) and the implementation of wetlands mitigation measures. After another public comment period, the FHA approved the final EIS, the section 4(f) analysis, and the tollroad in a July 6, 1992 Record of Decision. The FHA subsequently consulted with the FWS on two additional bird species--the gnat-catcher and cactus wren.
In January 1993, Laguna filed a complaint for declaratory and injunctive relief in the district court, challenging the FHA decision to approve the tollroad. 2 Shortly thereafter, TCA sold $1.2 billion in revenue bonds and notified its contractor to proceed with final plans for construction. Laguna moved for a temporary restraining order and a preliminary injunction, which the district court granted, prohibiting any activity in connection with construction of the corridor in the Laguna Greenbelt and in the reserve. 3
In October 1993, wildfires swept through the Laguna Greenbelt region. The district court postponed proceedings to allow the FHA to address this issue. The FHA reinitiated consultation on the gnatcatcher and cactus wren, obtained other evaluations, and, on March 7, 1994, issued a Memorandum of Record concluding that an SEIS was not necessary to address the effect of the wildfires on the tollroad's environmental impacts. The district court granted Laguna leave to amend its complaint to challenge that decision.
The district court eventually granted the FHA's and TCA's motions for summary judgment, denied Laguna's motion for summary judgment, dissolved its preliminary injunction, and denied a stay. We, however, enjoined construction activities in the Laguna Greenbelt and the reserve pending disposition of this appeal. We later granted the parties' stipulation to modify the injunction to permit certain salvage and surveying activities.
We review de novo the district court's determination that the EIS complies with NEPA and that no SEIS was required. Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 493 (9th Cir.1987). We also review de novo the district court's determination that the FHA complied with section 4(f) of the Transportation Act. See Arizona Past & Future Found., Inc. v. Lewis, 722 F.2d 1423, 1425-26 (9th Cir.1983).
Laguna challenges the EIS for failing to: (a) analyze all reasonable alternatives to the tollroad; (b) disclose the growth-inducing impacts of the tollroad; (c) accurately analyze the need for the tollroad, the air quality and traffic impacts of the tollroad, and the "no project" alternative to the tollroad; (d) disclose the impact of the tollroad on the reserve; (e) disclose the effectiveness of mitigation measures discussed in the EIS; and (f) use a rational and consistent definition of the project and its affected environment in analyzing the tollroad's impacts.
Before we turn to consider each of these contentions, we note that NEPA does not mandate particular substantive results, but instead imposes only procedural requirements. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Thus, in considering a challenge under NEPA, "[we] may not substitute [our] judgment for that of the...
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