Claude Sakr, Laura Jackson, and Margaret Skenderian v. City of Portland, United States Department of Housing and Urban Development, Scott Turner, and Home Forward

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CLAUDE SAKR, LAURA JACKSON, and Case No.: 3:24-cv-01265-AN

MARGARET SKENDERIAN,

Plaintiffs,

v. OPINION AND ORDER

CITY OF PORTLAND, UNITED STATES

DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT, SCOTT TURNER, and HOME

FORWARD,

Defendants.

Plaintiffs Claude Sakr, Laura Jackson, and Margaret Skenderian (together, "plaintiffs") brought this

action seeking judicial review under the Administrative Procedures Act ("APA") of defendant City of

Portland's (the "City") decision to issue an Environmental Assessment and Finding of No Significant Impact

for a new affordable housing development under the National Environmental Policy Act ("NEPA") 42

U.S.C. §§ 4321 et seq. Plaintiffs additionally seek review of the related actions of the United States

Department of Housing and Urban Development ("HUD"); Scott Turner, in his official capacity as

Secretary of HUD (together with HUD, the "federal defendants"); and Home Forward (together with the

City and the federal defendants, "defendants").

Pending before the Court now are seven motions: (1) plaintiffs' motion to complete or,

alternatively, supplement the administrative record; (2) plaintiffs' motion for summary judgment; cross-

motions for summary judgment filed separately by (3) Home Forward, (4) the City, and (5) the federal

defendants; (6) plaintiffs' motion for leave to file a supplemental memorandum and (7) plaintiffs'

subsequent motion for leave to withdraw that motion. After reviewing the parties' filings, the Court finds

that oral argument will not help resolve this matter. Local R. 7-1(d). For the reasons stated below, plaintiffs'

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motion to complete or supplement the administrative record is denied; plaintiffs' motion for summary

judgment is denied; defendants' cross-motions for summary judgment are granted; and plaintiffs' motion

for leave to withdraw the initial motion for leave is granted.

LEGAL STANDARDS

A. Judicial Review and Summary Judgment

1. Judicial Review

An agency's compliance with NEPA is reviewed under the APA. See San Luis & Delta-Mendota

Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (collecting cases). In APA cases, "the district

court is reviewing a decision of an administrative agency which is itself the finder of fact." Occidental

Eng'g Co. v. I.N.S., 753 F.2d 766, 770 (9th Cir. 1984). Therefore, "'the district judge sits as an appellate

tribunal.'" Herguan Univ. v. Immigr. & Customs Enf't, 258 F. Supp. 3d 1050, 1063 (N.D. Cal. 2017)

(quoting Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009)). When reviewing an agency's decision,

the Court must set aside that decision if, in relevant part, the decision is "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law," or "unsupported by substantial evidence." 5 U.S.C.

§§ 706(2)(A), (E). Agency decisions or actions are arbitrary and capricious if:

"the agency has relied on factors which Congress has not intended it to consider, entirely

failed to consider an important aspect of the problem, offered an explanation for its decision

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."

Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("State

Farm").

Though the standard is a "'narrow one,'" courts must still "'engage in a substantial inquiry[,] . . . a

thorough, probing, in-depth review.'" Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960

(9th Cir. 2005) (alterations in original) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 415-16 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)).

Generally, an agency's analysis is entitled to deference, particularly when the analysis is undertaken "within

[the agency's] area of competence." Az. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1163 (9th Cir.

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2010). However, no deference is necessary "when the agency's decision is without substantial basis in fact"

or if there is no "rational connection between the facts found and the determinations made." Id. Ultimately,

agencies' decisions must be upheld "'so long as the agencies have considered the relevant factors and

articulated a rational connection between the factors found and the choices made.'" City of Sausalito v.

O'Neill, 386 F.3d 1186, 1206 (9th Cir. 2004) (quoting Selkirk Conservation All. v. Forsgren, 336 F.3d 944,

953-54 (9th Cir. 2003)); see State Farm, 463 U.S. at 43 ("[T]he agency must examine the relevant data and

articulate a satisfactory explanation for its action including a 'rational connection between the facts found

and the choice made.'" (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

Summary judgment "is an appropriate mechanism for deciding the legal question of whether the

agency could reasonably have found the facts as it did" and determining "whether or not as a matter of law

the evidence in the administrative record permitted the agency to make the decision it did." Occidental

Eng'g Co., 753 F.2d at 769-70.

2. Summary Judgment

Summary judgment is appropriate when there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When deciding a motion for

summary judgment, the court construes the evidence in the light most favorable to the non-moving party.

See Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). However, "the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986) (emphases omitted). The substantive law determines which facts are

material. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment." Id. A dispute about a material fact is genuine

"if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party has the initial burden of informing the court of the basis for its motion and

identifying the portions of the pleadings and the record that it believes demonstrate the absence of an issue

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of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears

the burden of proof at trial, the moving party need not produce evidence negating or disproving every

essential element of the non-moving party's case. Id. at 325. Instead, the moving party need only prove

that there is an absence of evidence to support the non-moving party's case. Id.; In re Oracle Corp. Sec.

Litig., 627 F.3d 376, 387 (9th Cir. 2010). If the moving party sustains its burden, the non-moving party

must then show that there is a genuine issue of material fact that must be resolved at trial. Celotex, 477

U.S. at 324. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge[.]" Anderson, 477 U.S. at 255.

B. NEPA Standards1

NEPA establishes "a national policy [to] encourage productive and enjoyable harmony between

man and his environment." 42 U.S.C. § 4321. To meet NEPA's "'twin aims'" of ensuring that federal

agencies "'consider every significant aspect of the environmental impact of a proposed action'" and "'inform

the public that [the agency] has indeed considered environmental concerns in its decision making process,"

federal agencies must adequately assess the environmental impacts of federal actions. Kern v. U.S. Bureau

of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002) (quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def.

Council, Inc., 462 U.S. 87, 97 (1983)). To do this, agencies must prepare an Environmental Assessment

("EA") "determin[ing] whether the action will have a significant effect on the environment." Id. at 1067.

If the agency determines it will have such an effect, then the agency must prepare an Environmental Impact

Statement ("EIS"). Id. If, on the other hand, "the EA reveals no significant effect," then "the agency may

issue a Finding of No Significant Impact ('FONSI')." Id.

NEPA "'requires no more'" than the preparation of an adequate report. Seven Cnty. Infrastructure

1 The NEPA regulations cited and referred to throughout this Opinion and Order are those in effect during

the relevant period, and thus as amended in 2020. 86 Fed. Reg. 43,304 (July 16, 2020). The Council on

Environmental Quality ("CEQ") regulations have since been rescinded, but the parties agree that the

recission does not affect the standards applicable to this case. See 90 Fed. Reg. 10,610 (Feb. 25, 2025); see

also Pls. Mot. for Summ. J., ECF [32], at 2 n.1; and see City Resp. to Pls. Mot. for Summ. J., ECF [35], at

9.

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Coal. v. Eagle County., 605 U.S. 168, 180 (2025) ("Seven Cnty.") (quoting Strycker's Bay Neighborhood

Council, Inc. v. Karlen, 444 U.S. 223, 228 (1980) ("Karlen")). This is because NEPA is a "purely

procedural statute" that "imposes no substantive environmental obligations or restrictions." Id. at 173.

Instead, "NEPA 'establishes action-forcing procedures that require agencies to take a hard look at

environmental consequences.'" Cascadia Wildlands v. U.S. Bureau of Land Mgmt., 153 F.4th 869, 879 (9th

Cir. 2025) (quoting Kern, 284 F.3d at 1066). NEPA "prescribes the necessary process" to analyze

environmental impacts and prepare related documents, but "NEPA itself does not mandate particular

results." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see Seven Cnty., 605

U.S. at 180 ("Because an EIS is only one input into an agency's decision and does not itself require any

particular substantive outcome, the adequacy of an EIS is relevant only to the question of whether an

agency's final decision . . . was reasonably explained"). As the Supreme Court recently emphasized, NEPA

"does not require the agency to weigh environmental consequences in any particular way" because "[t]he

goal of the law is to inform agency decisionmaking, not to paralyze it." Seven Cnty., 605 U.S. at 173.

When reviewing a NEPA challenge, a court may not "interject itself within the area of discretion

as to the choice of the action to be taken by the agency." Id. at 185 (cleaned up). Rather, the court must

take on a limited role and afford the agency "substantial deference." Id. at 180, 183, 192. Indeed, "[t]he

bedrock principle of judicial review in NEPA cases can be stated in a word: Deference." Id. at 185.

C. Completing the Administrative Record

"Generally, judicial review of agency action is limited to review of the record on which the

administrative decision was based." Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989)

(citation omitted). Judicial review, however, must be based on "the whole record" under the APA. 5 U.S.C.

§ 706. The whole administrative record "includes everything that was before the agency pertaining to the

merits of its decision." Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th

Cir. 1993). This means that the record "consists of all documents and materials directly or indirectly

considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson,

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885 F.2d at 555 (emphasis in original) (quoting Exxon Corp. v. Dep't of Energy, 91 F.R.D. 26, 32 (N.D.

Tex. 1981)).

Agencies are entitled to a presumption that they have submitted the whole record. See Goffney v.

Becerra, 995 F.3d 737, 748 (9th Cir. 2021). A party challenging the completeness of the submitted record

therefore "bears the burden of overcoming the presumption of regularity by 'clear evidence.'" Xerces Soc'y

for Invertebrate Conservation v. Shea, 682 F. Supp. 3d 948, 953 (D. Or. 2023) (quoting Nw. Env't Advocs.

v. U.S. Fish & Wildlife Serv., No. 3:18-cv-01420-AC, 2019 WL 6977406, at *4 (D. Or. Dec. 20, 2019)).

To overcome the presumption, a challenging party must:

"(1) identify reasonable non-speculative grounds for its belief that the documents at issue

were considered by the agency and not included in the record, and (2) identify the materials

allegedly omitted from the record with sufficient specificity, as opposed to merely

proffering broad categories of documents . . . that are likely to exist."

Nw. Env't Advocs., 2019 WL 6977406, at *5 (cleaned up). It is not enough to "'assert[] that the documents

are relevant, were before or in front of the agency at the time it made its decision, and were inadequately

considered.'" Id. (quoting Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.

Supp. 2d 1, 6 (D.D.C. 2006)). Instead, a party "must 'put forth concrete evidence' to demonstrate that the

administrative record is incomplete." Id. (quoting Pac. Shores, 265 F. Supp. 2d at 6).

D. Supplementing the Administrative Record

Parties may also move to supplement the administrative record. While "'completing the record'

refers to including 'materials which were actually considered by the agency, yet omitted from the

administrative record,' . . . 'supplementing the record' refers to 'including materials that were not considered

by the agency, but which are necessary for the court to conduct a substantial inquiry.'" Bruce v. Azar, 389

F. Supp. 3d 716, 724 n.5 (N.D. Cal. 2019) (quoting Ctr. for Native Ecosystems v. Salazar, 711 F. Supp. 2d

1267, 1274 (D. Colo. 2010)), aff'd, 826 F. App'x 643 (9th Cir. 2020). Typically, courts may not consider

extra-record evidence because doing so "'inevitably leads the reviewing court to substitute its judgment for

that of the agency.'" San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir. 2014)

("Locke") (quoting Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980)). However, the Ninth Circuit

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has recognized four limited exceptions:

"(1) if admission is necessary to determine whether the agency has considered all relevant

factors and has explained its decision, (2) if the agency has relied on documents not in the

record, (3) when supplementing the record is necessary to explain technical terms or

complex subject matter, or (4) when plaintiffs make a showing of agency bad faith."

Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (cleaned up). These exceptions are to be

"narrowly construed and applied." Id. The party seeking to supplement the record "bears the burden of

demonstrating that a relevant exception applies." Locke, 776 F.3d at 993. To meet this "'heavy burden,'"

the "party must present more than broad categories of documents that were excluded. It must make a

'particularized showing' of what specific documents it seeks to" have supplemented. Xerces Soc'y, 682 F.

Supp. 3d at 955 (first quoting Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir.

2010); and then quoting Save the Colo. v. U.S. Dep't of the Interior, 517 F. Supp. 3d 890, 901 (D. Ariz.

2021)).

BACKGROUND

A. Factual Background

1. The Peaceful Villa Redevelopment Project

The Peaceful Villa Apartments (the "Apartments") were constructed in the 1940s in the Richmond

neighborhood of Portland, Oregon. CITY_00004034.2 The Apartments consisted of eighteen low-rise

buildings containing seventy affordable housing units spread across approximately four acres.

CITY_00000217. The Apartments are owned by Home Forward, a public housing authority. Id.

In December 2021, Home Forward announced its intent to redevelop the Apartments into new,

higher-density affordable housing through the Peaceful Villa Redevelopment Project (the "Project").

CITY_00004032-52. The Project intended to replace the seventy existing units and add ninety-six new

units, providing a total of 166 housing units at its completion. Id. Ultimately, the goal of the Project is "to

provide affordable housing in an underserved area of [the] City of Portland" by redeveloping the

2 All record cites to documents beginning with "CITY_" are from the administrative record, which was filed

on January 31, 2025. See ECF [27], [28], [31].

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Apartments "into a modern affordable housing development that consist[s] of three apartment buildings,

courtyards, community facilities, and parking." CITY_00000217. The Project includes a mix of studio,

one-bedroom, and larger apartments, with all units reserved for low-income renters. Id. The Project will

additionally make improvements to Southeast Woodward Street to allow for two-way vehicle access and a

sidewalk. Id.

The Project is estimated to cost over $95 million, a portion of which is to be financed with federal

Rental Assistance Demonstration ("RAD") funds administered by HUD. CITY_00000219. Because of

this, the Project must comply with NEPA. The City therefore elected to serve as the "Responsible Entity"

under NEPA 24 C.F.R. § 58, with HUD playing a supervisory role.

2. NEPA Process and Public Outreach

Home Forward began outreach about the plans for the Project with residents in late 2021 and with

community groups in April 2022. CITY_00000248; CITY_00004035. This continued for approximately

one-and-a-half years. Id. During this time, it held focus groups with residents of the Apartments and other

low-income families; meetings with the Richmond Neighborhood Association; meetings with the

Apartments' Community Advisory Committee ("CAC"), which included Sakr and Skenderian; meetings

with neighbors regarding street design; and multiple additional meetings with individual neighbors. See

CITY_00001003; CITY_00001384-89.

As a result of the community's input, Home Forward made several changes to the Project design

including, among other changes, reducing the unit count, increasing the amount of parking spaces and

disabled parking spaces, adding private entry stoops to ground floor units, eliminating a proposed fourth

story from most areas of the building, adjusting building sizes and heights to feel more "residential," moving

a building back from the street, and implementing energy-efficiency features. CITY_00000248-49;

CITY_00004036-41; CITY_00003551-53; CITY_00003556-58.

In mid-2023, the City initiated an EA for the Project pursuant to 24 C.F.R. §§ 58.36–58.40. The

initial draft was prepared by Home Forward with the assistance of Dudek, an independent environmental

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consultant. CITY_00001678; CITY_00000216. The City was responsible for certifying and submitting

the EA to HUD and, throughout 2023, regularly communicated with Home Forward and Dudek to discuss

the Project. See, e.g., CITY_00004030; CITY_00002839-45; CITY_00002800-04; CITY_00002629. The

City's Certifying Officer, Anna Shook, also conferred with experts about various aspects of the EA. See

CITY_00002942-43; CITY_0001675-76.

On November 15, 2023, the City released the draft EA and Notice of FONSI which concluded that

the Project would have "no significant impact" on the human environment. CITY_00001587-89;

CITY_00002769-70. The City published the EA and FONSI on the Portland Housing Bureau's website,

CITY_00002630-31; published the Notice of FONSI and Notice of Intent to Request Release of Funds

("RROF") in The Oregonian newspaper, CITY_00002644-47; and emailed certain community members

who had expressed interest in the Project, including Sakr and the chair of the Richmond Neighborhood

Association, CITY_00001684-86. Although HUD regulations require a fifteen-day comment period

following publication of a notice of FONSI, the City provided a thirty-three-day comment period in

response to an extension request received from the Richmond Neighborhood Association. Id.;

CITY_00000299.

The comment period lasted from November 16, 2023, until December 18, 2023, during which time

the City received over 300 individual specific comments from twelve commenters, including all three

plaintiffs. CITY_00000299-328; see, e.g., CITY_00000671 (responding to Skenderian's public comment);

CITY_00001569-70 (attaching public comments by Sakr and Jackson). These comments raised at least

nineteen concerns about the Project's impact, including but not limited to traffic congestion, displacement

of residents during construction, loss of green space, strain on local infrastructure, construction noise, and

air quality impacts. CITY_00000299-328. Some commenters also remarked that the EA failed to consider

any alternative project designs beyond the one proposed by Home Forward and a "no action" scenario.

CITY_00000303-05. The City provided individual responses to certain comments received during this

time and prepared a separate, comprehensive response organized by topic. CITY_00000299-328

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(providing a comprehensive response to public comments); CITY_00000727-51 (pointing individual

commentors, including Sakr and Skenderian, to responses within the comprehensive summary). The

comments and comprehensive response were posted on the HUD public environmental review site and

made available at the City's HUD environmental review webpage. CITY_00000299.

On February 2, 2024, the City's Certifying Officer and Home Forward completed an Environmental

Certification. CITY_00000208. That same day, the City issued the final EA and FONSI.

CITY_00000216-94.

On February 15, 2024, Sakr and Jackson sent a letter to the City expressing their ongoing objections

to the EA, including that the proposed design was not changed to the requested "design alternatives."

CITY_00000115-28. Sakr and Jackson stated that they "fully support the development of a public housing

project on the property, at the proposed density," but that they did not believe the neighborhood should be

impacted to address the current "housing crisis." CITY_00000121. Sakr and Jackson additionally

submitted written objections to HUD, complaining that the City "failed to comply with NEPA" primarily

because the EA did not consider "a series of smaller, multi-family townhomes" as proposed by plaintiffs.

CITY_00000115-18. HUD responded by confirming that the City followed the NEPA procedures and

found that none of the objections raised by plaintiffs necessitated further HUD review. CITY_00000055-

56. On March 29, 2024, HUD approved the Request for Release of Funds and allowed the project to move

forward. CITY_00000003.

B. Procedural Background

Plaintiffs initiated this action on August 2, 2024, and filed the operative first amended complaint

on August 23, 2024. Compl., ECF [1]; 1st Am. Compl., ECF [12]. Plaintiffs bring four causes of action

under NEPA, alleging (1) the City's finding of no significant impact was unlawful, (2) the NEPA processes

did not include sufficient public involvement, (3) the EA contains an inadequate environmental assessment,

and (4) the EA failed to consider a reasonable range of alternatives. 1st Am. Compl. ¶¶ 18-36.

The City lodged the administrative record on January 31, 2025. See ECF [27], [28], [29], [30],

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[31]. Plaintiffs moved for summary judgment on March 3, 2025. Pls. Mot. for Summ. J. ("Pls. MSJ"), ECF

[32]. Defendants Home Forward and the City each cross-moved for summary judgment on April 9, 2025.

Def. Home Forward Cross-Mot. for Summ. J. ("Home Forward Cross-MSJ"), ECF [34]; Def. City Cross-

Mot. for Summ. J. ("City Cross-MSJ"), ECF [36]. The federal defendants cross-moved for summary

judgment on April 16, 2025. Federal Defs. Cross-Mot. for Summ. J., ECF [37]. On April 30, 2025,

plaintiffs moved to complete or, alternatively, supplement the administrative record. Pls. Mot. to Complete

or Suppl. Admin. R., ECF [38].

On May 7, 2025, while the summary judgment briefing was ongoing, plaintiffs moved for a

preliminary injunction. Pls. Mot. for Prelim. Inj., ECF [39]. The Court held oral argument on the

preliminary injunction motion on May 20, 2025. Mins. of Proceedings of May 20, 2025, ECF [51]. On

June 2, 2025, the Court issued an Opinion and Order denying the preliminary injunction. Op. & Order of

June 2, 2025, ECF [53].

The parties subsequently completed briefing on the outstanding motions. On August 21, 2025,

plaintiffs filed a motion for leave to file a supplemental memorandum. Pls. Mot. for Leave to File Suppl.

Mem., ECF [57]. However, on September 13, plaintiffs sought leave to withdraw that motion. Pls. Notice

Re: Withdrawal of Mot., ECF [61].

DISCUSSION

A. Standing

Defendants do not dispute that plaintiffs have standing to bring this action, "[b]ut it is well

established that the court has an independent obligation to assure that standing exists, regardless of whether

it is challenged by any of the parties." Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). To establish

Article III standing, the plaintiffs "must show (1) [they have] suffered an 'injury in fact' that is (a) concrete

and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant[s]; and (3) it is likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs.,

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528 U.S. 167, 180-81 (2000) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). Article III

standing, alone, is not sufficient; plaintiffs "challenging an agency's compliance with NEPA must [also]

establish prudential standing by demonstrating that its injury falls 'within the zone of interests to be

protected by the statute.'" Solar Energy Indus. Ass'n v. FERC, 80 F.4th 956, 990 (9th Cir. 2023) (quoting

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep't of Agric., 415 F.3d 1078,

1103 (9th Cir. 2005)).

1. Injury in Fact

When a plaintiff alleges deficiencies with an EA or EIS, "a cognizable procedural injury exists . . .

under [NEPA] when the plaintiff also alleges a 'concrete' interest—such as an aesthetic or recreational

interest—that is threatened by the proposed action." City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th

Cir. 2004). The Ninth Circuit has "described this 'concrete interest' test as requiring a 'geographic nexus'

between the individual asserting the claim and the location suffering an environmental impact." Cantrell

v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (quoting Douglas County v. Babbitt, 48 F.3d 1495,

1501 n.5 (9th Cir. 1995)). Here, plaintiffs live close to the Project site and contend that faults with the EA

process will damage their interests related to the Project's impact on neighborhood character, crime, and

traffic. See, e.g., CITY_00001564-68 (indicating that Sakr and Jackson live in the immediate vicinity of

the project and asserting interests related to, among other things, "residential context and character," crime,

and traffic). This is sufficient for the purposes of Article III standing to establish a procedural injury in

fact.

2. Causation & Redressability

"Once a plaintiff has established an injury in fact under NEPA, the causation and redressability

requirements are relaxed." Cantrell, 241 F.3d at 682. Importantly, "plaintiffs asserting procedural standing

need not demonstrate that the ultimate outcome following proper procedures will benefit them." Id.

(collecting cases). Because plaintiffs can establish proximity to the Project site and an injury in fact, that

is adequate to satisfy Article III causation and redressability requirements.

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3. Zone of Interests

Even where plaintiffs can establish Article III standing, they must still demonstrate prudential

standing by showing that they are in the "zone of interests" of the statute at issue. Nev. Land Action Ass'n

v. U.S. Forest Serv., 8 F.3d 713, 715-16 (9th Cir. 1993). "The purpose of the 'zone of interests' test is 'to

exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives.'" Id. at

716 (quoting Clarke v. Secs. Indus. Ass'n, 479 U.S. 388, 397 n.12 (1987)). The purposes of NEPA are:

"To declare a national policy which will encourage productive and enjoyable harmony

between man and his environment; to promote efforts which will prevent or eliminate

damage to the environment and biosphere and stimulate the health and welfare of man; to

enrich the understanding of the ecological systems and natural resources important to the

Nation; and to establish a Council on Environmental Quality."

42 U.S.C. § 4321. Courts have generally phrased NEPA's statutory objective as "to protect the

environment, not the economic interests of those adversely affected by agency decisions." E.g. Nev. Land

Action Ass'n, 8 F.3d at 716 (emphasis added) ("[A] plaintiff who asserts purely economic injuries does not

have standing to challenge an agency action under NEPA."); see, e.g., Oceans v. U.S. Dept. of the Interior,

No. 1:24-cv-141-RCL, 2025 WL 973540, at *6 (D.D.C. 2025) ("NEPA's zone of interests extends to

'protecting the physical environment.'" (quoting Metro. Edison Co. v. People Against Nuclear Energy, 460

U.S. 766, 773 (1983))). It is well-established that aesthetic interests fall within the purview of

environmental interests. See, e.g., Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1236 (D.C.

Cir. 1996); Powder River Basin Resource Council v. U.S. Dept. of Interior, 749 F. Supp. 3d 151, 163

(D.D.C. 2024).

Put differently, "[t]o find that [a plaintiff's] interests do not fall inside the 'zone of interests'

protected by NEPA," a court must "find that (1) the [plaintiff's] interests are inconsistent with the purposes

of NEPA, and that (2) the interests are so inconsistent that it would be unreasonable to assume that Congress

intended to permit the suit." Douglas County, 48 F.3d at 1500. This rule reflects the fact that "[t]he zone

of interests test is not intended to impose an onerous burden on the plaintiff and 'is not meant to be especially

13

demanding.'" Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940 (9th Cir. 2005) (quoting Clarke,

479 U.S. at 399)).

Defendants do not dispute that plaintiffs are within the zone of interests that NEPA was designed

to protect. Plaintiffs generally contend that, due to defendants' actions, plaintiffs will "experience increased

traffic congestion, safety concerns, and changes to the visual landscape." Pls. MSJ 16. The record

consistently reflects plaintiffs' interest in the Project's impact on traffic, public safety, utilities,

neighborhood character, and the visual landscape. See, e.g., CITY_00001564-68 (Sakr and Jackson

asserting interest in Project impacts on community "context and character," emergency services, utility

capacity, and noise); CITY_00003779-822 (Skenderian asserting interest in Project impacts on resident

well-being and community safety). The Court finds that plaintiffs' concerns are sufficient to fall within

NEPA's zone of interests. Compare Oceans, 2025 WL 973540, at *9 (deeming within NEPA's zone of

interests "property owners['] concern[s] with the aesthetic effect of an undertaking on a historic site 'next

to and on their property'"), and Powder River Basin Resource Council, 749 F. Supp. 3d at 163 (citation and

quotation marks omitted) (deeming within NEPA's zone of interests alleged injuries including disturbances

to the landscape and "noise, light, and visual impacts, including truck traffic"), with Nev. Land Action Ass'n,

8 F.3d at 716 (concluding that assertions of "'lifestyle loss' as well as economic loss" were inadequate to

establish prudential standing because the actions sought by the plaintiff would not benefit the environment),

and Cal. Forestry Ass'n v. Thomas, 936 F. Supp. 13, 22 (D.D.C. 1996) (deeming "[t]he timber industry [to

be] a 'peculiarly un suitable proxy for those whom Congress intended to protect, and [the plaintiff to]

therefore not [be] within the zone of interests'" (quoting Hazardous Waste Treatment Council v. Thomas,

885 F.2d 918, 927 (D.C. Cir. 1989))).

B. Plaintiffs' Motion to Complete or Supplement the Administrative Record

1. Completing the Administrative Record

Plaintiffs have not put forth clear evidence sufficient to overcome the presumption of completeness.

See Xerces Soc'y, 682 F. Supp. 3d at 953. Plaintiffs' motion to complete or supplement the administrative

14

record generally identifies two buckets of documents that plaintiffs argue have been omitted: (1) four letters

sent by plaintiffs in 2022; and (2) five general categories of documents. The Court first addresses the

general categories of documents, and then the identified letters.

a. Categories of Unspecified Documents

As a threshold matter, plaintiffs do not sufficiently identify most of the documents they believe

defendants have omitted from the record. Aside from the four letters, plaintiffs do not identify any specific

documents as missing. See Pls. Mot. to Complete or Suppl. Admin. R. 8-9. Plaintiffs instead seek the

following categories of documents:

"- Documents covering the complete timeline of the NEPA process from at least late 2021

to October 2022 (where the present record begins);

- Documents showing the City['s] active participation in the review process conducted

by Home Forward and Dudek;

- Internal documents prepared or considered by Home Forward and Dudek which were

indirectly considered by the City;

- Communications between Home Forward and Dudek which were indirectly considered

by the City; and

- Internal documents and communications between Home Forward and BORA

Architects relating to any site design alternatives which were indirectly considered by

the City."

Id. at 4.

The cases plaintiffs cite help illustrate why these requests are insufficient. First, in Wildearth

Guardians v. Salazar, the District of Colorado required the moving party to "clearly set forth in its motion:

(1) when the documents were presented to the agency; (2) to whom; (3) and under what context." 713 F.

Supp. 2d 1243, 1255 (D. Colo. 2010). The movant there identified forty-two specific documents by date,

title, sender, and recipient. See id. at 1257-58. Second, L.C. v. Alta Lama School District concerned specific

settlement communications that the administrative law judge had improperly ruled inadmissible. No. 5:18-

cv-01535-SVW-SHK, 2019 WL 6620506, at *1 (C.D. Cal. Feb. 22, 2019). Third, in Audubon Society v.

U.S. Army Corps of Engineers, a court in this district granted a request to supplement the record with

information on the narrow technical "issue of how or whether implementation of the Corps' management

plan for cormorants on East Sand Island or in the Columbia River estuary is likely to affect the number of

15

returning salmon or increase productivity of listed salmon and steelhead adults[.]" No. 3:15-cv-0665-SI,

2015 WL 13649299, at *4 (D. Or. May 5, 2015). Even then, the court limited the request to "all documents

in the possession, custody, or control of the agencies," and noted that the court's decision to grant the request

to supplement the record was based in part on the court's conclusion that it "need[ed] access to the requested

information" in order to properly undertake its review of the agencies' decision under NEPA and the APA.

Id.

Here, plaintiffs' requested categories of documents do not offer the necessary specificity. Only the

first and fifth categories are bound by time, and the first four categories are all generally vague as to subject

matter. Courts routinely reject requests that, like plaintiffs', seek broad categories of information. See, e.g.,

Blue Mountains Biodiversity Project v. Jefferies, No. 2:20-cv-02158-SU, 2021 WL 3683879, at *5 (D. Or.

Aug. 19, 2021) (concluding that "materials, including internal communications from the agency" were not

properly part of the administrative record), objs. overruled sub nom. Blue Mountains Biodiversity Project

v. Jeffries, No. 2:20-cv-2158-MO, 2021 WL 5150659 (D. Or. Sept. 29, 2021), aff'd, 99 F.4th 438 (9th Cir.

2024); Xerces Soc'y, 682 F. Supp. 3d at 955 (denying request where the plaintiffs did "not identify any

specific deliberative documents on which the agency relied that they believe should be included in the

administrative records").

Plaintiffs' fifth request, for alternative design documents, appears to present a closer call. As to

this request, plaintiffs seek non-specific documents related to prior designs that were changed pursuant to

early feedback. Like the letters, plaintiffs' fifth request is temporally narrowed to the period of December

2021 to October 2022, and unlike the remainder of plaintiffs' categorical requests, this request appears to

reference non-speculative documents that are concretely known to exist. Nonetheless, "[t]he proper

touchstone remains the decision makers' actual consideration, and a party moving to complete the record

must show with clear evidence the context in which materials were considered by decision makers in the

relevant decision making process." Wildearth Guardians, 713 F. Supp. 2d at 1256. Put differently: "the

party [seeking to complete the record] need not show that the decision maker read the [document in

16

question], but the party must show that the [document in question] was so heavily relied on in the

recommendations that the decision maker constructively considered it." Id. The Court cannot say that

plaintiffs have met this burden here.

Plaintiffs additionally point to Doe I v. United States Department of Homeland Security to argue

that they have satisfied their burden by identifying gaps in the record, including the "absence of any

communications." No. 20-cv-07517-BLF, 2021 WL 3402311, at *3 (N.D. Cal. Aug. 4, 2021), objs.

overruled, No. 20-cv-07517-BLF, 2021 WL 5121169 (N.D. Cal. Nov. 2, 2021). It is true that the court in

Doe did not require the plaintiff to "identify individualized documents," but the court did require "sufficient

specificity." Id. at *2. The plaintiff in Doe met that bar by showing "the complete absence of any mention

or explanation for the over three-year delay in adjudicating Doe I's I-485 application," that reversed the

agency's prior finding and "the absence of any communications from agency personnel below the Direct of

the USCIS Nebraska Service Center." Id. Under those circumstances, the court found it "reasonable, and

non-speculative, for [the plaintiff] to believe that there are documents in the record that shed light on why

[the defendants] reversed their three-year-old decision" and that it was "reasonable, and non-speculative, to

believe that agency employees other than the Director of a massive service center were involved in the

review of Plaintiffs' case." Id. at *3. The situation here is not comparable. Plaintiffs do not seek

information about a specific individualized decision, nor do they claim that there is a total absence of

communications in the record—on the contrary, the record here contains numerous letters from plaintiffs

themselves, as well as communications from community members and internal employees. See, e.g.,

CITY_00000004-59 (showing emails to and from defendants); CITY_00001435 (letter from the Richmond

Neighborhood Association); CITY_00000201-07 (showing emails to and from Sakr).

b. Letters

As mentioned above, plaintiffs do specifically describe four letters that they sent to or received

from Home Forward that are not found within the record. Pls. Mot. to Complete or Suppl. Admin. R. 9.3

3 In reply, plaintiffs mention two additional sources: a Richmond Neighborhood Association Board meeting

17

These letters are dated August 7, September 9, October 12, and October 14, 2022. Defendants state that

they excluded these documents because they predate Home Forward's request for federal funding and

therefore predate defendants' NEPA obligations. Defs. Resp. to Pls. Mot. to Complete or Suppl. the R.,

ECF [42], at 11-13. Plaintiffs argue that this date is arbitrary because Home Forward began investigating

the Project years before it sought funding—as early as 2008. Pls. Reply Supp. Mot. to Complete or Suppl.

the R. 2.

The Court finds that completion of the record with the letters is not appropriate. As an initial matter,

there does not appear to be any authority to suggest that documents created before NEPA obligations arise

are categorically excluded from the record. By the same token, there does not appear to be any authority

showing that the administrative record must include information that predates NEPA obligations.

Regardless, the burden is on plaintiffs to rebut the presumption of completeness. Here, plaintiffs have not

sufficiently shown that the record is incomplete absent the four identified letters, nor have they shown any

"reasonable, non-speculative grounds for the belief that the [letters] were considered by the agency."

Audubon Soc'y of Portland, 2017 WL 6376464, at *4. Given the gap in time between the dates of the letters

and the issuance of the EA in this case, and in light of the plethora of more contemporaneous

communications that were considered and included in the record, it appears speculative to think that those

letters were, either directly or indirectly, considered by defendants. As such, the Court finds that plaintiffs

have not overcome the burden of completeness. Furthermore, plaintiffs' briefing suggests that the relevant

record could go back more than ten years. This makes clear that some reasonable delineation—even if

that occurred on August 8, 2022, and a "Timeline of Community and Resident Engagement" from

December 2021 through May 2023, CITY_00001003, which plaintiffs assert lists communications that are

not included in the record. Courts generally have discretion to disregard new matters raised on reply. See

Cal. Pipe Recycling, Inc. v. Sw. Holdings, Inc., No. CV F 08-0236LJOSMS, 2009 WL 424325, at *6 (E.D.

Cal. Feb. 19, 2009) (citing Lujan v. Nat. Wildlife Fed., 497 U.S. 871, 894-95 (1990)). Regardless, plaintiffs

have not demonstrated that the information from these sources was considered by the City. Indeed, "the

mere existence and alleged availability of the documents" does not necessarily mean that "they were

considered by [the agency], at least indirectly. Nw. Env't Advocs., 2019 WL 6977406, at *6. Courts have

previously found insufficient that documents were merely cited in the record. Id. (citing Audubon Soc'y of

Portland v. Zinke, No. 1:17–cv–00069–CL, 2017 WL 6376464, at *5 (D. Or. Dec. 12, 2017) and The Cape

Hatteras Access Pres. All. v. U.S. Dep't of Interior, 667 F. Supp. 2d 111, 112-14 (D.D.C. 2009)).

18

perceived by plaintiffs to be an arbitrary one—is necessary. For all these reasons, plaintiffs' request to

complete the administrative record is denied.

2. Supplementing the Administrative Record

Plaintiffs' supplementation request fares no better. Plaintiffs argue that they have shown that

supplementation is necessary to determine whether defendants considered "all relevant factors" and whether

the City conducted an independent review. Pls. Reply Supp. Mot. to Complete or Suppl. Admin. R., ECF

[52]. However, plaintiffs appear to muddle the merits into their request. Elsewhere in the briefing, plaintiffs

argue that the absence of the requested documents from the record shows that the City "clearly violated the

NEPA" and, accordingly, "this Court should vacate and remand the EA and FONSI." Pls. Mot. to Complete

or Suppl. Admin. R. 11. But supplementation "of the evidence to determine the correctness or wisdom of

the agency's decision is not permitted, even if the court has also examined the administrative record."

Asarco, Inc., 616 F.2d at 1160. What plaintiffs really request is vacatur dressed as supplementation, and

that is not allowed. See id. at 1161 (cautioning that reviewing evidence that was "considered for the purpose

of judging the wisdom of the" agency "necessarily led the district court to substitute its judgment for that

of the agency").

Plaintiffs' cited case law does not alter this analysis. In Airport Impact Relief, Inc. v. Wykle, the

court found that "the administrative record [did] not fully detail precisely what steps [the agency] took to

reach its conclusion," while affidavits offered as supplementation showed these precise steps. 45 F. Supp.

2d 89, 101 (D. Mass.), aff'd, 192 F.3d 197 (1st Cir. 1999). Here, plaintiffs seek broad discovery into

documents that, per plaintiffs' own motion for summary judgment, may not even exist. See Pls. MSJ 20.

Granting plaintiffs' request impermissibly risks shifting "the focal point for judicial review" from "the

administrative record already in existence" to "some new record made initially in the reviewing court."

Camp v. Pitts, 411 U.S. 138, 142 (1973). Plaintiffs have not "identif[ied] general subject matter

demonstrably relevant to the decision, but wholly neglected by the deciding agency," nor have they shown

the applicability of any other of the limited exceptions allowing for supplementation. Nw. Env't Advocs.,

19

2019 WL 6977406, at *9. Therefore, plaintiffs' request to supplement the administrative record is denied.

C. Cross-Motions for Summary Judgment

All parties have cross-moved for summary judgment. Plaintiffs' summary judgment motion raises

four primary arguments: (1) defendants did not consider a reasonable range of alternatives; (2) defendants

relied on inaccurate data and assumptions; (3) defendants did not ensure sufficient public participation; and

(4) the City improperly delegated responsibility for the EA to Home Forward and Dudek. Each of these

grounds, plaintiffs argue, constitute sufficient bases to vacate and remand the EA. Defendants disagree

with these arguments and present several separate grounds for summary judgment, to which plaintiffs did

not reply. Accordingly, this case largely rises and falls on the four alleged deficiencies plaintiffs identify.

For the reasons described below, none of these bases necessitate judgment in plaintiffs' favor.

1. Plaintiff's Summary Judgment Motion

a. Reasonable Range of Alternatives

Defendants have satisfied their obligation to consider a reasonable range of alternatives. Agencies

are required under NEPA to "study, develop, and describe appropriate alternatives to recommended courses

of action." 42 U.S.C. § 4332(2)(H).4 This general obligation applies regardless of whether an agency is

preparing an EIS or an EA. 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. When preparing an EA, like the one at issue here, an agency need only prepare a "[b]rief

discuss[ion]" of reasonable alternatives. 40 C.F.R. § 1501.5(c) (2020); see Ctr. for Biological Diversity v.

Salazar, 695 F.3d 893, 915 (9th Cir. 2012) ("'[W]ith an EA, an agency only is required to include a brief

discussion of reasonable alternatives.'" (quoting N. Idaho Cmty. Action Network v. U.S. Dep't of Transp.,

545 F.3d 1147, 1153 (9th Cir. 2008))).

Plaintiffs' arguments here are two-fold: first, that defendants wrongly limited the landscape of

4 Prior to this statute's 2023 revision, this provision was contained in subsection E. See 42 U.S.C.

§ 4332(2)(E) (1975). The Court understands the parties' citations to section 4332(2)(E) to refer to the

requirement currently codified at section 4332(2)(H).

20

alternatives to a "preferred" plan and a "no action" alternative, and second, that defendants did not

sufficiently consider plaintiffs' preferred proposal.

On the first point, defendants did not err in focusing on two alternatives. The Ninth Circuit has

"repeatedly held that an agency satisfies NEPA when it considers only two alternatives—action and no

action." Earth Island Inst. v. U.S. Forest Serv., 87 F.4th 1054, 1065 (9th Cir. 2023). Plaintiffs argue that

this is only true in exceptional circumstances, but that is not borne out by the case law. In Earth Island

Institute, the agency met the "reasonable alternative" requirement by "contemplating two alternatives to

reach [its] goal: action or no action." Id. at 1060. In North Idaho Community Action Network, the Ninth

Circuit held that the agencies met this requirement by considering "two alternatives: the [p]roject with the

changes proposed in the . . . EA, and the [p]roject without the proposed changes." 545 F.3d at 1153. Two

alternatives were also sufficient in Native Ecosystems Council, in which the Ninth Circuit concluded that

"a plain reading of the regulations doom[ed]" the plaintiff's argument that "having only two final

alternatives—no action and a preferred alternative—violates the regulatory scheme." 428 F.3d at 1246.

None of these holdings were cabined to exceptional circumstances, and plaintiffs have not shown any

reason why full consideration of just two options should automatically be deemed unreasonable here. It

was not per se unreasonable for defendants to consider two alternatives in their EA, and plaintiffs have not

shown that defendants violated their NEPA obligations by doing so here.

Nor have plaintiffs shown that defendants violated their obligations by failing to consider plaintiffs'

preferred proposal. Reasonable alternatives are assessed based on the project's purpose and need. Earth

Island Inst., 87 F.4th at 1065. Here, the Project's purpose "is to provide affordable housing in an

underserved area of the City of Portland" and to "contribute critical housing stock to the Portland region."

CITY_00000217-18; CITY_00000303. Plaintiffs have not carried their burden of "explaining how [their]

suggested alternatives could reach that goal." Earth Island Inst., 87 F.4th at 1066. In support of their

preferred proposal, plaintiffs point to a series of drawings prepared by volunteer planners. See

CITY_00001379 (showing seven alternative concepts depicted in hand-drawn figures). The proposal states

21

that the figures "demonstrate[] that there are many alternatives to meet the same proposed density goals

while meeting the general scale and character of [the] neighborhood," but the proposal does not indicate

how many units each proposed drawing would include. Id. In briefing, plaintiffs elaborate that their

proposal would include "smaller townhome-style buildings, similar to Home Forward's own Stephens

Creek Crossing Project." Pls. MSJ 12. But as defendants note, Stephens Creek has only 122 units, see

CITY_00001533, while the Project originally aimed for 180 units before compromising to 166 units based

on community feedback, see CITY_00004041. CITY_00004126-28. As the challenging party, plaintiffs

"have a duty to show that the alternative is viable." Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073,

1087 (9th Cir. 2013). Design sketches and a reference project that is more than twenty-five percent smaller

are not sufficient to carry that burden to show that defendants failed to consider alternatives that would

meet the Project's stated goal. See CITY_00000249 (providing that "[a] lower density alternative would not

sufficiently meet the project need for lack of affordable housing in Southeast Portland and to reduce

waitlists for affordable housing."). Because plaintiffs have not identified a viable alternative, plaintiffs

have not shown that defendants failed to consider a reasonable range of alternatives.

b. Reliance on Accurate Data and Assumptions

Defendants have taken a "hard look" at the Project's effects as required under NEPA. Native

Ecosystems Council, 418 F.3d at 964. Plaintiffs argue that defendants failed to meet this obligation because

they "rel[ied] on incorrect assumptions [and] data." Id. Specifically, plaintiffs allege four failures:

(1) failure to accurately describe the neighborhood's visual character; (2) failure to properly assess traffic

and safety impacts; (3) failure to substantively assess the impacts on the surrounding environment; and

(4) failure to properly consider plaintiffs' preferred alternative plan. The record does not support plaintiffs'

allegations.

First, "conclusory assertions" regarding relevant facts and conditions can render an EA inadequate.

Bark v. U.S. Forest Serv., 958 F.3d 865, 872 (9th Cir. 2020). Here, however, the EA does not rely on

inaccurate data or conclusory assertions about the neighborhood's character. The record shows that the

22

Project site is zoned "for Multi-Dwelling Residential [] land uses," that its zoning "already supports a

significantly higher housing density than what is currently built onsite," and that the "City's Comprehensive

Plan supports the construction of more densified housing." CITY_00003275; CITY_00000230; see

CITY_00004153 ("Local Government Verification that Development is Consistent With Zoning and Land

Use Regulations"); see also CITY_00001440 (showing the zoning codes for the Project's site and

surrounding areas). Defendants' Transportation and Parking Study shows that the Project is situated a few

blocks away from Division Street and Cesar E. Chavez Boulevard, both of which contain a mix of

commercial and multi-family residences. CITY_00002601; CITY_00002608; see CITY_00001440.

Nothing in the record suggests that these facts are inaccurate.

Plaintiffs do not dispute that factual accuracy but instead argue that the EA still fails on this point

because it does not sufficiently analyze aesthetics. It is true that NEPA considers the "aesthetic, historic,

[and] cultural" effects of proposed actions. 40 C.F.R. § 1508.1(i)(4). However, NEPA does not require the

detailed examination that plaintiffs propose. Relying on Surfrider Foundation v. Dalton, plaintiffs argue

that defendants' efforts were insufficient here because they did not include "[c]omputer-generated before-

and-after pictures." 989 F. Supp. 1309, 1321 (S.D. Cal. 1998), aff'd sub nom. S.D. Chapter of the Surfrider

Found. v. Dalton, 196 F.3d 1057 (9th Cir. 1999) (per curiam). But Surfrider does not stand for the position

that before-and-after pictures must be included in an EA; these pictures were merely one portion of the EA

that the court considered in its review. Id. Additionally, Surfrider was not based on the same regulation at

issue here. While this EA is governed by 40 C.F.R. § 1508.1(g)(4) (2020), the EA in Surfrider was

governed by 40 C.F.R. § 1508.27(b)(3), which expressly directed agencies to consider "[u]nique

characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime

farmlands, wetlands, wild and scenic rivers, or ecologically critical areas." 989 F. Supp. at 1320.

National Parks Conservation Association v. Semonite is also inapposite. 916 F.3d 1075 (D.C. Cir.

2019), am. on reh'g in part, 925 F.3d 500 (D.C. Cir. 2019). In Semonite, the project at issue involved a

situation "where Congress's purpose in designating the resources was to preserve an unencumbered view

23

of an attractive scenic expanse." Id. at 1087 (citation modified). This specific site involved "the nation's

only Congressionally-designated historic water trial" and therefore required further examination of the

"'[u]nique characteristics of the geographic area such as proximity to historic or cultural resources,'" due to

a now-inapplicable regulation. Id. at 1086 (quoting 40 C.F.R. § 1508.27(b)(3)). The Project here does not

involve an area designed to preserve an attractive scenic expanse—as the record shows, it is an area

designated for multi-family residences.

Second, the EA sufficiently considers traffic and safety impacts. As to traffic, defendants

completed a comprehensive Transportation and Parking Study. See CITY_00002596-626. The study

evaluated street capacity, transit access, parking impacts, travel demand projections, and neighborhood

impacts, among other things. Id. Plaintiffs may disagree with the study's conclusions, but there is no

reasonable basis to claim defendants failed to take a hard look at traffic impacts. As to public safety,

plaintiffs argue that the EA is insufficient because it did not include a Crime Prevention Through

Environmental Design ("CPTED") evaluation as required under Portland Resolution No. 3664. See

Portland City Policy ENB-2201. Defendants respond that the EA did consider CPTED guidelines, see

CITY_00000310, and regardless, NEPA only requires agencies to examine potential effects on the physical

environment, not on social fears or anxieties. See Metro. Edison Co., 460 U.S. at 777 ("The operation of

the facility is an event in the physical environment, but the psychological health damage to neighboring

residents resulting from unrealized risks of crime is too far removed from that event to be covered by

NEPA.").

Plaintiffs' third and fourth points rehash arguments made elsewhere in their briefs. Plaintiffs argue

that defendants failed to substantively consider public comments, which is addressed below, and that

defendants failed to consider reasonable alternatives, which is addressed above. For the reasons stated

elsewhere in this opinion, these arguments also fail. Plaintiffs have therefore failed to show that the EA

relies on inaccurate data and assumptions.

//

24

c. Public Participation

Defendants have also adequately complied with NEPA's public participation requirements. As

plaintiffs concede, defendants satisfied NEPA's technical requirements by publishing the FONSI and

associated Notice in a local newspaper and by holding a thirty-three-day public review period. Pls. MSJ

22 (citing 40 C.F.R. § 1501.5(e) and 24 C.F.R. §§ 58.43, 58.45). Nonetheless, plaintiffs argue that

defendants' efforts are still insufficient because the (1) City was poised to approve the Project before the

EA was posted; (2) defendants were not responsive enough to public input; and (3) the posting's format

inhibited public participation.

The record shows that defendants surpassed NEPA's requirement to "make diligent efforts to

involve the public in preparing and implementing their NEPA procedures." 40 C.F.R. § 1506.6(a) (2020).

The record is replete with defendants' efforts to involve the public. Home Forward began engaging with

residents of the Apartments in 2021. CITY_00004035. Over the following years, defendants formed and

utilized a community advisory committee; communicated directly with members of the public; and held

meetings with the Richmond Neighborhood Association, Peaceful Villa residents, and members of the

surrounding community. Id. For many months, defendants actively engaged with the community and key

stakeholders—well beyond the mandated notice period.

Plaintiffs' view would essentially punish defendants for seeking and incorporating early feedback.

As a result of the community's input, Home Forward made numerous changes to the Project's plans

including reducing the number of units from 180 to 166, increasing on-site parking by 20 spaces,

eliminating a fourth story through most of the Project space, increasing setback along Clinton Street "to

reduce visual scale and increase plantings," increasing the setback on the southwest corner to add parking

and reduce the building's height, and re-orienting a plaza "to better maintain resident privacy at inner

courtyards." CITY_00004041. As a result of this early outreach, defendants were able to incorporate and

respond to community feedback before publishing the EA. Id. Plaintiffs use this to argue that the comment

period was illusory since defendants did not make further changes after publishing the EA. But plaintiffs'

25

view would discourage early community involvement and thus run contrary to NEPA's "twin aims" of

ensuring consideration of "every significant aspect of the environmental impact of a proposed action" and

informing the public about these considerations. Kern, 284 F.3d at 1066; see 40 C.F.R. § 1500.1(b) ("NEPA

procedures must ensure that environmental information is available to public officials and citizens before

decisions are made.").

Although defendants did not make further changes, the record shows that they did consider the

additional comments raised during the notice period. NEPA requires agencies to "consider the comments

and make modifications, if appropriate, in response to the comments, before [they] completes [their]

environmental certification and before the recipient submits its" request for funds. 24 C.F.R. § 58.43(c)

(emphasis added). Here, defendants prepared a detailed and categorically organized response to the

comments they received during the notice period. CITY_00000299; CITY_00000635-64. Defendants also

prepared separate individual responses to certain comments, on top of the collective response document.

See CITY_00000303-05. The record shows that defendants sufficiently considered and responded to public

comments, defeating plaintiffs' first two arguments on this point.

So too does the record negate plaintiffs' argument that the FONSI Notice was inaccessible.

Defendants published the FONSI Notice in a local newspaper, The Oregonian. CITY_00002644-45. They

also expanded the comment period from fifteen to thirty-three days at the request of the Richmond

Neighborhood Association. CITY_00000750-51. And, as plaintiffs admit, the posting garnered over 300

public comments during this window, clearly showing that it was accessible and enabling of public

participation. See CITY_00000299. Plaintiffs have not shown that defendants failed to satisfy NEPA's

public participation requirements.

d. Delegation

Lastly, defendants satisfied NEPA's delegation and independent review requirements. Plaintiffs'

final contention is that the City unlawfully delegated its NEPA responsibilities to Home Forward and Dudek

in violation of 40 C.F.R. § 1506.5 because (1) the City did not conduct a sufficient independent review and

26

(2) Dudek did not sign a conflict-of-interest disclosure. Neither argument commands a finding in plaintiffs'

favor.

NEPA's implementing regulations allows agencies to delegate the preparation of environmental

documents to outside entities, including applicants and contractors. 40 C.F.R. § 1506.5 (2020). When an

agency delegates document preparation to an applicant, the agency is required to "assist the applicant by

outing the types of information required " and "independently evaluate the information submitted" while

ensuring responsibility for the document's "accuracy, scope, and contents." Id. § 1506.5(b)(1)-(2). NEPA's

regulations specifically contemplate applicants and contractors preparing EAs. Id. § 1506.5(b)(4). When

an agency delegates preparation to an applicant or contractor, that applicant or contractor must submit to

the agency a "disclosure statement . . . that specifies any financial or other interest in the outcome of the

action." Id. § 1506.5(b)(4).

Here, the City delegated EA preparation to the applicant, Home Forward. CITY_00001678.

Plaintiffs do not contest that Home Forward is the applicant in this situation and there is nothing in the

record showing otherwise. Home Forward, in turn, delegated certain responsibilities to Dudek, a contractor.

Id.; CITY_00000216. Again, there is no dispute as to Dudek's role. Plaintiffs argue that even if this

delegation was mechanistically appropriate, it was not carried out lawfully because the City did not

independently review the EA. In support of this argument, plaintiffs cite several documents where the City

described its "limited" and "administrative" role in the EA's preparation. See CITY_00000080;

CITY_00000665; CITY_0001290; CITY_00001323; CITY_00004030. Plaintiffs further argue that the

record is silent as to any draft mark-ups, technical review memoranda, or requests from the City for

additional analyses. Taken together, plaintiffs argue that this shows insufficient independent evaluation.

Neither the evidence nor case law support plaintiffs' conclusion. Turning first to the documents,

plaintiffs cite five email threads involving Anna Shook, the City's Certifying Officer. The first email thread,

dated March 16, 2023, is a conversation between Shook, Sakr, and Home Forward's Project Coordinator.

CITY_00004030. In response to Sakr's concerns about the EA process, Shook responds that "[i]t is Home

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Forward's responsibility to conduct the [EA] and submit their backing documentation to me to review for

legal sufficiency. . . . When I receive the [EA], I will consult with HUD's environmental review experts on

the feasible alternative requirement." Id. The second email thread, dated December 20, 2023, is a

conversation between Shook and City personnel. CITY_00001323. There, Shook says that she will review

and respond to comments on the EA with help from "Home Forward's environmental review consultants

and project managers." CITY_00001324. The third email thread, dated December 27, 2023, shows an

internal correspondence between City personnel explaining that the City's role is "administrative" as

"related to the [EA] process" and that NEPA procedures had "been followed appropriately" because Shook

had "been responsive to the neighbors and in communication with HUD and Home Forward."

CITY_0001290. The fourth email, dated February 2, 2024, is from Shook to Leanne Mitchell.

CITY_00000665. Therein, Shook explains that she "review[s] all EAs submitted by local entities" and that,

in her "limited role as a reviewer, not author, of the [EA] . . . [she] consulted with Home Forward on all

issues raised." Id. Shook repeated this description of her role in the fifth and final email thread, which is

dated February 27, 2024, and contains a conversation between Shook and Skenderian. CITY_00000080.

None of these emails show that the City failed to conduct an independent evaluation of the EA as required

under NEPA.

The City's independent review is documented elsewhere in the record. See, e.g., CITY_00000168-

70; CITY_00001149-54 (email from Shook asking Home Forward to send her specific questions by email

so that she can address them); CITY_00001483-85 (email from Shook to Skenderian explaining that Shook

will respond to comments substantively as able and will share comments with Home Forward);

CITY_00001662-63 (email from Shook to Skenderian answering Skenderian's questions and explaining

her review process); CITY_00000873-75 (email thread between Shook and personnel from HUD, Home

Forward, and Dudek discussing comment responses); CITY_00000820-21 (email thread showing a January

29, 2024 meeting between Shook and Dudek personnel); CITY_00002800-04 (Shook email saying she

would "go back through the references in the separate laws and authorities and correct them" and that she

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would "go back through and do a final review and will probably have a list of clarifications" needed "before

[she could] approve [the EA]"); CITY_00002913-17 (Shook email explaining that she needs to review and

sign off on the EA). Plaintiffs are correct that the documents do not show detailed, heavy-handed

involvement—but that is not what NEPA requires. NEPA expressly allows for applicants and applicant-

directed contractors to prepare EAs and there is no dispute that Home Forward and Dudek prepared the EA

here. The City may not have been extensively involved in the EA's minutia, but the record shows that it

did conduct an independent evaluation and thus met its NEPA obligations.

Case law confirms that NEPA requires no more than what defendants have shown here. As an

initial matter, "[a]n EA may be based entirely upon information supplied by the applicant and indeed may

be prepared by an outside consulting firm." Friends of the Earth v. Hintz, 800 F.2d 822, 835 (9th Cir. 1986)

("Hintz"). The "independent review" requirement does not mean that the agency must "conduct a further

study" or "independently investigate" proposed alternatives. Id. In Hintz, the Ninth Circuit found that the

agency met this requirement by requesting reports, consulting "federal and state agencies," analyzing

information, asking questions, requesting revisions, and reaching a rational conclusion. Id. Likewise, in

Western Watersheds Project v. McCullough, the agency met the "independent evaluation" requirement by

requesting datasets, providing comments, requesting supplemental information, and conducting meetings.

2023 WL 4557742, at *2. Delegation does not require agencies to redo work—it merely requires

independent review. See Stop B2H Coal. v. Bureau of Land Mgmt., 552 F. Supp. 3d 1101, 1139 (D. Or.

2021); see also Clatsop Residents Against Walmart v. U.S. Army Corps of Eng'rs, 735 F. App'x 909, 911

(9th Cir. 2018) ("No regulation imposes a standalone requirement that the Corps independently evaluate an

applicant's submissions when preparing an EA."). The record shows that the City properly delegated and

independently evaluated the EA here.

As to the conflict-of-interest disclosure requirement, plaintiffs provide no authority showing that

failure to do so is a basis for vacatur. The operative version of the regulation, 40 C.F.R. § 1506.5, was

promulgated in 2020. See Final Rule by the Council on Environmental Quality, 85 Fed. Reg. 43,304,

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43,371 (July 16, 2020). It requires "[c]ontractors or applicants preparing environmental assessments or

environmental impact statements [to] submit a disclosure statement to the lead agency that specifies any

financial or other interest in the outcome of the action." 40 C.F.R. § 1506.5(b)(4).

The Court cannot locate—and defendants have not identified—any evidence in the record that a

proper conflict-of-interest disclosure was provided as required by the 2020 regulations. In turn, the Court

cannot locate—and plaintiffs have not identified—any evidence in the record that Dudek had a conflict of

interest. Plaintiffs contend only that "Dudek was hired and paid by Home Forward so it had a clear financial

interest in satisfying the client." Pls. MSJ 25. This is less a conflict of interest and more an inevitability;

if being hired by the applicant automatically created an impermissible conflict of interest, it would render

the regulation's provisions related to applicant-hired contractors irrelevant. Nonetheless, even if Dudek did

have an undisclosed conflict of interest, "a contractor's technical conflict of interest does not lead to the

automatic invalidation" of an environmental document. Cachil Dehe Band of Wintun Indians of Colusa

Indian Cmty. v. Zinke, 889 F.3d 584, 608 (9th Cir. 2018). In the absence of a proper disclosure (or the

appearance of some conflict), "the Court 'can evaluate the oversight that the agency provided to the [EA]

process as a factual matter and make a determination upholding the [EA].'" Id. (quoting Ass'ns Working

for Aurora's Residential Env't v. Colo. Dep't of Transp., 153 F.3d 1122, 1129 (10th Cir. 1998)). As

discussed above, the Court finds that the City provided effective oversight of the EA process, which was

sufficient to ensure the integrity of the EA. Accordingly, plaintiffs have shown no error in the City's

delegation.

2. Defendants' Grounds for Summary Judgment

Plaintiffs do not oppose defendants' other stated grounds for summary judgment. See Home

Forward Resp. to Pls. MSJ, ECF [33]; Home Forward Cross-MSJ; Pls. Reply Combined Opp'n to Defs.

Cross-MSJs & Reply Supp. Pls. MSJ, ECF [49]. Based on the above analysis, defendants did not violate

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NEPA.° Defendants’ "final decision was reasonable and reasonably explained" and there is no reason for

the Court to vacate the EA or remand the Project back to defendants. Seven Cnty., 605 U.S. at 185.

Plaintiffs' motion for summary judgment is therefore denied and defendants’ cross-motions for summary

judgment are granted.

CONCLUSION

For the reasons stated herein, plaintiffs' motion to complete or, in the alternative, supplement the

administrative record, ECF [38], is DENIED; plaintiffs’ motion for summary judgment, ECF [32], is

DENIED; and defendants’ cross-motions for summary judgment, ECF [34], [36], [37], are GRANTED.

Plaintiffs' motion for leave to withdraw their request for supplemental briefing, ECF [61], is also

GRANTED, and plaintiffs’ motion for leave to file supplemental briefing, ECF [57], is thus

WITHDRAWN. Judgment shall follow.

IT IS SO ORDERED.

DATED this 18th day of February, 2026.

/ fe ~ NY ) f)

Adrienne Nelson

United States District Judge

> Having found summary judgment should be granted in favor of defendants, the Court does not reach the

federal defendants’ arguments regarding their specific liability for the challenged actions. See Def. City

Resp. to Pls. MSJ, ECF [35]; City Cross-MSJ; Federal Defs. Reply Supp. Cross-MSJ, ECF [56].

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