Sierra Club v. Babbitt, CV F 99-5219 AWI DLB.

Decision Date12 July 1999
Docket NumberNo. CV F 99-5219 AWI DLB.,CV F 99-5219 AWI DLB.
Citation69 F.Supp.2d 1202
CourtU.S. District Court — Eastern District of California
PartiesSIERRA CLUB, a non-profit corporation; and Merg (Mariposans for Environmentally Responsible Growth), a non-profit corporation, Plaintiffs, v. Bruce BABBITT, in his official capacity as Secretary of the Interior; Department of the Interior; National Park Service; John Reynolds, in his official capacity as Western Regional Director of the National Park Service; and Stanley Albright, in his official capacity as Superintendent of Yosemite National Park; Department of Transportation; Rodney Slater, in his official capacity as Secretary of the Department of Transportation, Federal Highway Administration; Robert Stanton, in his official capacity as Director of the National Park Service; Kenneth Wykle, in his official capacity as Administrator of the Federal Highway Administration; Kiewit Pacific Company, a Delaware corporation, and Does 1 through 30, Defendants.

Julia A. Olson, San Francisco, CA, Sharon Eileen Duggan, Law Offices of Sharon E. Duggan, San Francisco, CA, for Sierra Club, plaintiffs.

Charles M. O'Connor, United States Attorney, Assistant United States Attorney, San Francisco, CA, E. Robert Wright, United States Attorney's Office, Fresno, CA, for Bruce Babbit, defendants.

Jewell J. Harlgeroad, McInerney and Dillon, Oakland, CA, for Kiewit Pacific Company, defendant.

MEMORANDUM OPINION AND ORDER RE MOTIONS FOR SUMMARY JUDGMENT

ISHII, District Judge.

This action challenges the reconstruction project by the National Park Service ("NPS") regarding Highway 140 from Yosemite National Park's western border to the Pohono Bridge ("the El Portal Road" or "the Road"). Plaintiffs originally sought to enjoin Defendants from taking any steps towards the continuation of the El Portal Road reconstruction project ("the Project") until the NPS provides necessary consideration of all significant environmental effects in compliance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"), the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq. ("WSRA"), the National Park Organic Act, 16 U.S.C. § 1, et seq., and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. Plaintiffs also seek various related types of declaratory relief.

On May 6, 1999, Plaintiffs filed a motion for summary judgment. On May 25, 1999, Defendants filed an opposition and counter motion for summary judgment.

This court has jurisdiction over Plaintiff's NEPA, WSRA, and Organic Act Claims pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-706. Venue is proper in this district.

In Plaintiffs' First Amended Complaint, they seek relief as set forth below:

1. A judgment declaring that the EA, FONSI, and the Biological Assessment for the El Portal Road Improvement Project are not in compliance with procedures and requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370(d) and the applicable CEQ regulations, 40 C.F.R. §§ 1500-1517.7, and are therefore null and of no legal force and effect;

2. A judgment and order enjoining the defendants preliminarily and permanently from implementing the El Portal Road Improvement Project pending the outcome of the development and issuance of a legally adequate Environmental Assessment and Environment Impact Statement in compliance with NEPA;

3. A declaratory judgment that defendants violated the APA by failing to adopt a comprehensive management plan for the Merced River which flows through the Yosemite National Park, pursuant to the Wild and Scenic Rivers Act;

4. A declaratory judgment that defendants violated the APA by failing to develop revisions to the Yosemite National Park General Management Plan, to comply with 16 U.S.C. 1274(b), that assures that no development or use of park lands shall be undertaken that is inconsistent with the Wild and Scenic River Act designation of the Wild and Scenic River segments of the Merced River that are within the boundaries of Yosemite National Park and the El Portal Administrative Unit;

5. A declaratory judgment that defendants violated the APA by failing to protect and enhance the values of the Merced River as a designated scenic river under the Wild and Scenic Rivers Act;

6. A judgment and order enjoining the defendants primarily and permanently from implementing the El Portal River Improvement Project for violations of the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq.;

7. A judgment declaring that the actions of the defendants as set forth in this complaint are arbitrary and capricious, an abuse of discretion, not in accordance with the law, and without observance of procedures required by law, pursuant to the Administrative Procedures Act, 5 U.S.C. § 706(2);

8. A judgment declaring that the actions of the defendants as set forth in this complaint are in violation of the Organic Act and the Yosemite National Park 1980 General Management Plan;

9. A judgment ordering the Department of the Interior, NPS and their respective officials to immediately prepare, after consultation with the public, and before any other planning decisions are made which could in any way impact or alter the Wild and Scenic Merced River corridor, a comprehensive management plan in accordance with § 1274(d) of WSRA.

In response to a request from the court, Plaintiffs supplied in their Supplemental Brief filed June 25, 1999, an updated and specific explanation of the injunctive relief they seek. Plaintiffs seek the following in terms of injunctive relief: 1) an order enjoining any additional work in the Merced River corridor pending adoption of a comprehensive management plan; 2) an order requiring Defendants to amend the Yosemite Valley General Management Plan to ensure there will be no development contrary to the purposes of WSRA; 3) avoid any work on the Road in Segment D; 4) an order protecting very specifically delineated sections of vegetation and riparian habitat in Segments A, B and C; 5) an order requiring completion of the revegetation plan; 6) appointment of an impartial bat expert to evaluate the current status of bat roosts along El Portal Road, and make recommendations for mitigating impacts; 7) appointment of an oversight committee to evaluate the outstandingly remarkable values of the Merced River and assess the viability of protecting and enhancing those values in conjunction with the Project; 8) require Defendants to prepare and circulate an EIS for the El Portal Road Project before an additional work is performed.

CHRONOLOGY
                  January 2, 1997 A winter storm caused
                          Yosemite National Park and
                
                          the El Portal Road to suffer
                          damage
                  May 7, 1997 National Park Service
                      ("NPS") issued a draft Environmental
                      Assessment ("EA") for the
                      Project for public review
                  June 16, 1997 Public comment period
                       ended
                  August 22, 1997 Revised or Final EA
                         issued
                  August 28, 1997 NPS issued the Finding
                         of No Significant Impact ("FONSI")
                         for the project for a three-year
                         construction contract
                  August 28, 1997 Phase I design plans
                         approved.
                  January 19, 1998 Compliance Feasibility
                          Paper issued.
                  February 20, 1998 Request for Proposals
                           issued.
                  August 5, 1998 NPS modified the FONSI
                         to change the project so as to
                         be implemented with a two-year
                         construction schedule.
                
PRELIMINARY CONSIDERATIONS

Plaintiffs and Defendants have moved to exclude declarations submitted by the opposing party in support of their motion for summary judgment. It is undisputed that the focal point for judicial review is the administrative record before the agency at the time of the agency's decision and "not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973).

There are, however, exceptions to this general rule. In Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), the Ninth Circuit explained as follows:

However, certain circumstances may justify expanding review beyond the record or permitting discovery. See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). The district court may inquire outside the administrative record when necessary to explain the agency's action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may "obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The court's inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. [Friends of Earth v.]Hintz, 800 F.2d[822] at 829[(9th Cir.1986)].

The district court may also inquire outside of the administrative record "when it appears the agency has relied on documents or materials not included in the record." Id. In addition, discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action. Id.

In the present case, the court finds that all of the declarations at issue fall into one of the above exceptions. While the court has not relied exclusively on any declaration to reach its conclusion as to any of the issues presented, it has found the declarations helpful in understanding the factual complexities of this case. Accordingly, the objections of all parties to the declarations filed in this action are overruled.

LEGAL STANDARD

Plaintiffs seek various forms of injunctive relief against the El Portal Road Improvement Project ("the Project"). The United States Supreme...

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