North Idaho Community v. U.S. Dept. of Transp.

• Decision Date: 06 October 2008
• Docket Number: No. 08-35283.,08-35283.
• Citation: 545 F.3d 1147
• Parties: NORTH IDAHO COMMUNITY ACTION NETWORK, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Mary E. Peters,<SMALL><SUP>*</SUP></SMALL> U.S. Secretary of Transportation; United States Federal Highway Administration; Thomas J. Madison, Jr.,<SMALL><SUP>**</SUP></SMALL> Administrator, U.S. Federal Highway Administration; Peter Hartman,<SMALL><SUP>***</SUP></SMALL> Division Administrator, Idaho Division, U.S. Federal Highway Administration; Edwin B. Johnson, Field Operations Engineer, Idaho Division, U.S. Federal Highway Administration; United States Fish & Wildlife Service; Idaho Transportation Department; Pamela Lowe,<SMALL><SUP>****</SUP></SMALL> Director, Idaho Transportation Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

545 F.3d 1147

NORTH IDAHO COMMUNITY ACTION NETWORK, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Mary E. Peters,^* U.S. Secretary of Transportation; United States Federal Highway Administration; Thomas J. Madison, Jr.,^** Administrator, U.S. Federal Highway Administration; Peter Hartman,^*** Division Administrator, Idaho Division, U.S. Federal Highway Administration; Edwin B. Johnson, Field Operations Engineer, Idaho Division, U.S. Federal Highway Administration; United States Fish & Wildlife Service; Idaho Transportation Department; Pamela Lowe,^**** Director, Idaho Transportation Department, Defendants-Appellees.

No. 08-35283.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 25, 2008.

Filed October 6, 2008.

Matthew K. Bishop, Western Environmental Law Center, Helena, MT, for the plaintiff-appellant.

Deborah A. Ferguson, Assistant United States Attorney, Office of the United States Attorney for the District of Idaho, Boise, ID, for appellee United States of America; Murray D. Feldman, Holland & Hart, LLP, Boise, ID, for appellees Idaho Transportation Department, et al.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. 2:05-CV-00273-EJL.

Before: T.G. NELSON, HAWKINS, and JAY S. BYBEE, Circuit Judges.

PER CURIAM:

Plaintiff North Idaho Community Action Network ("NICAN") appeals the district court's grant of summary judgment in favor of defendants United States Department of Transportation (the "DOT"), Federal Highway Administration, and Idaho Transportation Department (collectively, the "Agencies"). NICAN challenges a proposed highway construction project on a portion of U.S. Highway 95 located in northern Idaho. NICAN claims that the Agencies violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c). We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

U.S. Highway 95 ("US-95") currently runs through the heart of downtown Sandpoint, Idaho, and is the only highway that ties northern Idaho to southern Idaho. The proposed highway construction project (the "Project") will improve US-95 in and around Sandpoint.

The Project will be funded and constructed in four separate phases. The first, second, and fourth phases involve widening the existing highway to four lanes. The third phase involves realigning an approximate two-mile stretch of US-95 to create a byway that will route the highway to the east of Sandpoint and remove through-traffic from the downtown Sandpoint area. Because the Agencies deem the third phase to be the most important phase of the Project, the Agencies have proceeded with that phase first.

In September 1999, the Agencies approved a final environmental impact statement (the "1999 EIS") for the Project. In May 2000, the Agencies issued a record of decision (the "ROD") for the Project. In the ROD, the Agencies selected the "Sand Creek Byway" as the preferred alternative for the third phase of the Project. As initially planned in the 1999 EIS, the Sand Creek Byway involved constructing two miles of new two-lane highway along the east side of Sand Creek, building a partial interchange/bridge structure over Sand Creek and Bridge Street, and building a full diamond interchange at the junction of US-95 and State Highway 200.

In April 2005, the Agencies released an environmental assessment (the "2005 EA") that included various changes to the Project design described in the 1999 EIS. These changes all relate to the third phase of the Project, the Sand Creek Byway, and were made in response to input from various members of the local community. The changes include traffic design modifications—such as building additional offramps and adding a third lane for safer merging—as well as aesthetic improvements and mitigation measures—such as constructing a pedestrian and bicycle pathway along Sand Creek and building three artificial habitat enhancement areas in Sand Creek. The 2005 EA concluded that the changes to the Project design would not have significant impacts beyond those already considered in the 1999 EIS. Based on this conclusion, the Agencies issued a Finding of No Significant Impact ("FONSI").

In August 2006, the Agencies prepared an environmental reevaluation (the "2006 Reevaluation") covering the Project. The 2006 Reevaluation set forth additional changes to the Project design and assessed possible environmental effects of those changes. The majority of the changes involve dredging Sand Creek and will result in the removal of approximately 17,035 cubic yards of material from Sand Creek. The 2006 Reevaluation concluded that there was no additional significant impact and that neither a supplemental environmental impact statement ("SEIS") nor an environmental assessment ("EA") was required.

In July 2005, after the Agencies released the 2005 EA and issued its FONSI determination, but before the Agencies prepared the 2006 Reevaluation, NICAN filed suit in the district court challenging the Agencies' approval of the Project. On the parties' cross-motions for summary judgment, the district court granted summary judgment in favor of the Agencies and against NICAN.

NICAN moved for an injunction pending appeal, which the district court denied. NICAN then sought and obtained an injunction pending appeal from a motions panel of this court. After oral argument in this expedited appeal, we lifted the injunction and allowed construction of the Sand Creek Byway to commence. This Opinion sets forth the explanation for our decision.

STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007). The Administrative Procedure Act ("APA") provides authority for the court's review of decisions under NEPA and Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c). See Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir.2006); Alaska Ctr. for the Env't v. Armbrister, 131 F.3d 1285, 1288 (9th Cir.1997). Under the APA, a reviewing court may set aside agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). As this court recently explained:

Review under the arbitrary and capricious standard is narrow, and we do not substitute our judgment for that of the agency. Rather we will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (internal quotations and citations omitted).

DISCUSSION

I. NEPA

"NEPA `is our basic national charter for protection of the environment.'" Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1185(9th Cir.2008). Although NEPA does not impose any substantive requirements on federal agencies, it does impose procedural requirements. See Lands Council, 537 F.3d at 1000. Through these procedural requirements, NEPA seeks to make certain that agencies "`will have available, and will carefully consider, detailed information concerning significant environmental impacts,' and `that the relevant information will be made available to the larger [public] audience.'" Id. (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)).

NICAN argues that the Agencies violated NEPA's procedural requirements by (a) failing to consider alternatives to changes to the Project set forth in the 2005 EA, (b) failing to disclose and assess in the 2005 EA the impacts of dredging Sand Creek, (c) failing to consider a tunnel alternative for the Project, (d) failing to consider the impacts the Project will have on historical properties, and (e) failing to prepare a supplemental environmental impact statement. We address each of these claims in turn.

A. Failure to Consider Alternatives

NICAN argues that the Agencies violated NEPA by failing to consider alternatives to the various changes to the Project design set forth in the 2005 EA. We disagree.

NEPA requires the agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). This "alternatives provision" applies whether an agency is preparing an environmental impact statement ("EIS") or an environmental assessment ("EA"), and requires the agency to give full and meaningful consideration to all reasonable alternatives. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1245 (9th Cir.2005). However, "an agency's obligation to consider alternatives under an EA is a lesser one than under an EIS." Id. at 1246. Thus, whereas with an EIS, an agency is required to "[r]igorously explore and objectively evaluate all reasonable alternatives," See 40 C.F.R. § 1502.14(a), with an EA, an agency only is required to include a brief discussion of reasonable alternatives. See 40 C.F.R. § 1508.9(b).

NICAN does not dispute that the Agencies adequately explored and evaluated reasonable alternatives to the Project in preparing the 1999 EIS. NICAN also does not challenge the Agencies' selection, in the ROD, of the Sand Creek Byway as the preferred alternative. Rather, NICAN argues that the Agencies violated NEPA because they failed to consider alternatives to the various changes to the Project design set forth in the 2005 EA.

In the 2005 EA, the Agencies...