Ka Makani `O Kohala Ohana Inc. v. Water Supply, No. 00-17473.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtTashima
Citation295 F.3d 955
Docket NumberNo. 00-17473.
Decision Date01 July 2002
PartiesKA MAKANI `O KOHALA OHANA INC., a Hawai`i nonprofit corporation, Plaintiff-Appellant, v. WATER SUPPLY, Department of, County of Hawai`i; Milton Pavao, in his capacity as Department Manager of the Department of Water Supply, County of Hawai`i; United States Geological Survey; William Meyer, in his capacity as District Chief of the United States Geological Survey; Department of Housing and Urban Development, United States; Art Agnos, in his capacity as Secretary's Representative of the United States Department of Housing and Urban Development, Defendants-Appellees.
295 F.3d 955
KA MAKANI `O KOHALA OHANA INC., a Hawai`i nonprofit corporation, Plaintiff-Appellant,
v.
WATER SUPPLY, Department of, County of Hawai`i; Milton Pavao, in his capacity as Department Manager of the Department of Water Supply, County of Hawai`i; United States Geological Survey; William Meyer, in his capacity as District Chief of the United States Geological Survey; Department of Housing and Urban Development, United States; Art Agnos, in his capacity as Secretary's Representative of the United States Department of Housing and Urban Development, Defendants-Appellees.
No. 00-17473.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 7, 2002.
Filed July 1, 2002.

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COPYRIGHT MATERIAL OMITTED

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John G. Nelson, Denver, CO, for the plaintiff-appellant.

Susan L. Pacholski, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC, for the Federal defendants-appellees.

Michael S. Kagami, Deputy Corporation Counsel, Hilo, HI, for the County of Hawaii defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; Helen Gillmor, District Judge, Presiding. D.C. No. CV 98-254 HG.

Before WALLACE, TASHIMA and TALLMAN, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:


Plaintiff-Appellant Ka' Makani `O Kohala Ohana, Inc. ("Ka Makani"), a citizens' coalition, appeals the district court's summary judgment in favor of Defendants-Appellees County of Hawaii Department of Water Supply ("DWS") and Milton Pavao, its Department Manager; the United States Geological Survey ("USGS") and William Meyer, its District Chief; and the United States Department of Housing and Urban Development ("HUD") and Art Agnos, the Secretary's Representative of HUD (collectively "Appellees") dismissing Ka Makani's action against them. Ka Makani alleged that Appellees' involvement in the Kohala Water Transmission System Project ("Kohala Project") constituted "major federal action" that triggered the requirement to prepare an environmental

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impact statement ("EIS") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, and sought to enjoin Appellees from proceeding with any work on the Project until a federal EIS is completed. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. FACTUAL BACKGROUND

In 1987, the DWS began planning for the Kohala Project, a transbasin water diversion system on the Big Island of Hawaii that would transfer up to 20 million gallons of groundwater per day (in Phases I and II, combined) from the northern part of Kohala to South Kohala through an arrangement of groundwater wells, gravity flow pipelines, and storage reservoirs, to provide a reliable supply of potable water for the development of coastal resorts.

USGS involvement in the Kohala Project consisted primarily of the partial funding of and participation in a series of preliminary studies designed to assess the groundwater availability in the basal aquifer of the North Kohala area and a program of test drilling and test pumping in the aquifer. DWS and USGS entered into four Joint Funding Agreements in 1988, dividing the costs of the studies and an interpretative analysis of the data collected evenly between the two, in the amount of $800,000 each. The studies resulted in the publication of two reports in 1995 and were used by the DWS to prove the merits of the project. In addition to the initial studies, the DWS consulted with the USGS about the design of the Kohala Project and requested that the USGS conduct further studies on the impact of the proposed wells on the streamflow of the Polulu Valley Stream, the Kohakohau Stream, the Waikoloa Stream, and the Olaa Flume Spring.

In 1991, HUD became involved in the Kohala Project when Congress passed an appropriations bill allocating $500,000 to the County of Hawaii for an EIS for the development of a water resource system for the community of Kohala. See Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act of 1991, Pub.L. No. 101-507, Title II, 104 Stat. 1351, 1356-60 (1991). HUD provided the County with application materials for the special purpose grant and gave the County advice regarding its application, including a recommendation to restrict the scope of the activities proposed to be funded by the grant to those exempted from NEPA requirements in order to expedite the approval process. While it is unclear from the record whether HUD restricted the use of the grant funds to the preparation of an EIS alone or had informally approved of its use in the other activities set forth in the County's revised application, there is no doubt that the activities to be funded by the grant were limited to those of a preliminary nature.1

The DWS only drew upon the grant account once, in 1995, for $30,000 to cover a portion of the payments made to contractors working on the state EIS for the Kohala Project.2 In 1998, the DWS notified HUD that the Kohala Project had been placed on hold due to the poor economic climate, but maintained that the project would be resumed at the appropriate time. HUD initially agreed to extend the three-year time limit for use of the grant funds, but later recommended the

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closing out of the grant. In 1999, Congress authorized Hawaii County to transfer the remaining balance for use in other water system improvement projects subject to HUD's approval. In April 2000, the DWS proposed to use the remaining $470,000 for an unrelated project in South Hilo.

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. See Hall v. Norton, 266 F.3d 969, 975 (9th Cir.2001). "De novo review of a district court judgment concerning the decision of an administrative agency means we view the case from the same position as the district court." Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.1995) (citation omitted).

Because NEPA does not contain a separate provision for judicial review, we review an agency's compliance with NEPA under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A). See Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir.2001). Usually, under the APA, we review an agency's decision to determine whether it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" however, where an agency has decided that a particular project does not require the preparation of an EIS, without having conducted an environmental assessment ("EA"), and we are dealing with primarily legal issues that are based upon undisputed historical facts, we review the decision under the less deferential standard of "reasonableness." See Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir.1998) (citing Res. Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir.1993) (quoting § 706 of the APA, 5 U.S.C. § 706(2)(A))).3

"The `agency's interpretation [of its own regulations] must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" Alhambra Hosp. v. Thompson, 259 F.3d 1071, 1074 (9th Cir.2001) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)); see also Auer v. Robbins, 519 U.S. 452...

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37 practice notes
  • Sierra Club v. U.S. Fish and Wildlife Service, No. CIV-02-174-HU.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 29 Octubre 2002
    ...`major Federal actions significantly affecting the quality of the human environment.'" Ka Makani `O Kohala Ohana, Inc. v. Water Supply, 295 F.3d 955, 959 (9th Cir.2002) (quoting 42 U.S.C. § 4332(2)(C)). While the effects of the elk predation study on the human environment and the need for a......
  • San Luis Obispo Peace v. Nuclear Regulatory, No. 03-74628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Junio 2006
    ...matters from that to be accorded in disputes involving predominately legal questions"); Ka Makani`O Kohala Ohana, Inc. v. Water Supply, 295 F.3d 955, 959 n. 3 (9th Cir.2002) ("Because this case involved primarily legal issues . . . based on undisputed historical facts, we conclude that the ......
  • High Sierra Hikers Ass'n v. Blackwell, No. 02-15504
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Agosto 2004
    ...an EIS without first conducting an EA, we review under the reasonableness standard. Ka Makani `OKohala Ohana Inc. v. Water Supply, Dept., 295 F.3d 955, 959 n. 3 (9th Cir.2002); Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir.1998). We will defer to an agency's decision only i......
  • John v. United States, No. 09–36122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 5 Julio 2013
    ...I, 72 F.3d at 704. 83.Sauer v. U.S. Dep't of Educ., 668 F.3d 644, 650 (9th Cir.2012). 84.Ka Makani 'O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 959 (9th Cir.2002) (internal quotation marks and citation omitted). 85.5 U.S.C. §§ 701–706. 86.Id. § 706(2). The State incorrectly argues th......
  • Request a trial to view additional results
37 cases
  • Sierra Club v. U.S. Fish and Wildlife Service, No. CIV-02-174-HU.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 29 Octubre 2002
    ...`major Federal actions significantly affecting the quality of the human environment.'" Ka Makani `O Kohala Ohana, Inc. v. Water Supply, 295 F.3d 955, 959 (9th Cir.2002) (quoting 42 U.S.C. § 4332(2)(C)). While the effects of the elk predation study on the human environment and the need for a......
  • San Luis Obispo Peace v. Nuclear Regulatory, No. 03-74628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Junio 2006
    ...matters from that to be accorded in disputes involving predominately legal questions"); Ka Makani`O Kohala Ohana, Inc. v. Water Supply, 295 F.3d 955, 959 n. 3 (9th Cir.2002) ("Because this case involved primarily legal issues . . . based on undisputed historical facts, we conclude that the ......
  • High Sierra Hikers Ass'n v. Blackwell, No. 02-15504
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 25 Agosto 2004
    ...an EIS without first conducting an EA, we review under the reasonableness standard. Ka Makani `OKohala Ohana Inc. v. Water Supply, Dept., 295 F.3d 955, 959 n. 3 (9th Cir.2002); Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir.1998). We will defer to an agency's decision only i......
  • John v. United States, No. 09–36122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 5 Julio 2013
    ...I, 72 F.3d at 704. 83.Sauer v. U.S. Dep't of Educ., 668 F.3d 644, 650 (9th Cir.2012). 84.Ka Makani 'O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 959 (9th Cir.2002) (internal quotation marks and citation omitted). 85.5 U.S.C. §§ 701–706. 86.Id. § 706(2). The State incorrectly argues th......
  • Request a trial to view additional results

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