# Sierra Club v. Babbitt

> District Court, E.D. California · July 12, 1999 · 69 F. Supp. 2d 1202

URL: https://www.frixlaw.com/law-library/cases/2348595

## Case

- **Full name:** SIERRA 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
- **Court:** District Court, E.D. California
- **Decided:** July 12, 1999
- **Citations:** 69 F. Supp. 2d 1202; 50 ERC (BNA) 1263; 1999 U.S. Dist. LEXIS 16708; 1999 WL 966127
- **Precedential status:** Published
- **Opinion:** Opinion by Ishii
- **Judges:** Ishii
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2348595

## How later opinions describe it (automated extraction)

- holding defendants did not act “arbitrarily or capriciously” by utilizing a design-build process that required it to “defer[ ] analysis and mitigation of impacts.”
- finding extra-record declarations permissible and helpful in understanding the factual complexities of the case
- applying the doctrine of prudential mootness, and quoting S. Utah Wilderness Alliance, 110 F.3d at 727-28

## Opinion text

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 Plaintiffs 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 develop
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ment 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 revege-tation 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
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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 (“FON-SI”) 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 FON-SI 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 ree-ord 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 casé. Accordingly, the objections of all parties to the declarations filed in this action are overruled.
LEGAL STANDARD
Plaintiffs seek various forms of injunc-tive relief against the El Portal Road Improvement Project (“the Project”). The United States Supreme Court has explained as follows:
It goes without saying that an injunction is an equitable remedy. It “is not a
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remedy which issues as of course,”
Harrisonville v. W.S. Dickey Clay Mfg. Co.,
289 U.S. 334, 337-338 , 53 S.Ct. 602, 603 , 77 L.Ed. 1208 (1933), or “to restrain an act the injurious consequences of which are merely trifling.”
Consolidated Canal Co. v. Mesa Canal Co., 177
U.S. 296, 302, 20 S.Ct. 628, 630 , 44 L.Ed. 777 (1900). An injunction should issue only where the intervention of a court of equity “is essential in order effectually to protect property rights against injuries otherwise irremediable.”
Cavanaugh v. Looney,
248 U.S. 453, 456 , 39 S.Ct. 142, 143 , 63 L.Ed. 354 (1919). The Court has repeatedly held that the basis for injunctive relief in the federal courts' has always been irreparable injury and the inadequacy of legal remedies.
Rondeau v. Mosinee Paper Corp.,
422 U.S. 49, 61 , 95 S.Ct. 2069, 2077 , 45 L.Ed.2d 12 (1975);
Sampson v. Murray,
415 U.S. 61, 88 , 94 S.Ct. 937, 951 , 39 L.Ed.2d 166 (1974);
Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 506-507 , 79 S.Ct. 948, 954-955 , 3 L.Ed.2d 988 (1959);
Hecht Co. v. Bowles,
supra, at 329, 64 S.Ct., at 591.
Where plaintiff and defendant present competing claims of injury, the traditional function of equity has been to arrive at a “nice adjustment and reconciliation” between the competing claims,
Hecht Co. v. Bowles,
supra, at 329, 64 S.Ct., at 592. In such cases, the court “balances the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction.”
Yakus v. United States,
321 U.S. 414, 440 , 64 S.Ct. 660, 675 , 88 L.Ed. 834 (1944). “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mold each decree to the necessities of the particular case. Flexibility rather than rigidity has -distim guished it.”
Hecht Co. v. Bowles,
supra, 321 U.S., at 329 , 64 S.Ct., at 592 .
In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.
Railroad Comm’n. v. Pullman Co.,
312 U.S. 496, 500 , 61 S.Ct. 643, 645 , 85 L.Ed. 971 (1941). Thus, the Court has noted that “[t]he award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff,” and that “where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.”
Yakus v. United States,
supra, 321 U.S., at 440 , 64 S.Ct., at 675 (footnote omitted).
Weinberger v. Romero-Barcelo,
456 U.S. 305, 311-313 , 102 S.Ct. 1798 , 72 L.Ed.2d 91 (1982). The Court later summarized its holding in,
Weinberger
as follows:
We reviewed the well-established principles governing the award of equitable relief in federal courts.
Id.,
at 311-313 , 102 S.Ct., at 1802-1804 . In brief, the bases for injunctive relief are irreparable injury and inadequacy of legal remedies; In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Although particular regard should be given to the public interest, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.”
Id.,
at 313 , 102 S.Ct., at 1803 .
Amoco Production Co. v. Village of Gambell, Alaska,
480 U.S. 531, 542 , 107 S.Ct. 1396 , 94 L.Ed.2d 542 (1987).
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The review of final agency action is governed by the Administrative Procedure Act under an “arbitrary or capricious” standard.
5 U.S.C.
§ 706 (2)(A). Absent a showing of arbitrary action, a court must assume that an agency has exercised its discretion appropriately.
Kleppe v. Sierra Club,
427 U.S. 390, 412 , 96 S.Ct. 2718 , 49 L.Ed.2d 576 (1976). An agency’s decision should be overturned if it was “arbitrary, capricious, an abuse of discretion, other otherwise not in accordance with the law.” 5 U.S.C. § 706 (2)(A);
Idaho Farm Bureau Fed’n v. Babbitt,
58 F.3d 1392 , 1401 (9th Cir.1995). The Ninth Circuit has explained review of agency decisions as follows:
Review under the arbitrary and capricious standard is narrow and the reviewing court may not substitute its judgment for that of the agency.
Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 376 , 109 S.Ct. 1851 , 104 L.Ed.2d 377 (1989) (Marsh). We must determine whether the agency’s decision was made after considering the relevant factors and whether the agency made a clear error of judgment.
Id.
at 378 , 109 S.Ct. at 1861 . We may reverse the agency’s decision as arbitrary or 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, offered an explanation that ran counter to the evidence before the agency, or offered one that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Dioxin/Organochlorine Center v. Clarke,
57 F.3d 1517, 1521 (9th Cir.1995).
Western Radio Services Co., Inc. v. Espy,
79 F.3d 896, 900 (9th Cir.1996),
cert. denied,
519 U.S. 822 , 117 S.Ct. 80 , 136 L.Ed.2d 38 (1996).
In specific reference to review of a decision whether to prepare an Environmental Impact Statement (“EIS”), the Ninth Circuit has stated:
We review the Corps’s decision not to prepare an EIS under an “arbitrary and capricious” standard of review.
Greenpeace Action v. Franklin,
14 F.3d 1324 (9th Cir.1992). Using this standard, we consider only whether the Corps’s decision is based on a “reasoned evaluation of the relevant factors.”
Id.
at 1332 . We will overturn the Corps’s decision only if the Corps committed a “clear error of judgment.”
Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 378, 385 , 109 S.Ct. 1851, 1856 , 104 L.Ed.2d 377 (1989).
California Trout v. Schaefer,
58 F.3d 469, 473 (9th Cir.1995).
DISCUSSION
I. NATIONAL ENVIRONMENTAL POLICY ACT
A. The NEPA Process
This action is brought in part pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321
et seq.
and the implementing regulations which are codified as 40 CFR §§ 1500-1508 . The Ninth Circuit has summarized the process under NEPA as follows:
“The purpose of NEPA is to assure that federal agencies are fully aware of the impact of their decisions on the environment.”
Friends of the Earth v. Hintz,
800 F.2d 822, 836 (9th Cir.1986) (citing
Friends of Endangered Species, Inc. v. Jantzen,
760 F.2d 976, 985 (9th Cir.1985)). To fulfill that purpose, NEPA requires all federal agencies to .prepare an EIS for “major federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (2)(C). To determine whether an EIS is necessary, the agency first prepares an EA, which briefly describes the need for, alternatives to, and environmental impacts of the proposed federal action. 40 C.F.R. § 1508.9 (1994). If the environ
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mental agency determines in the EA that the federal action will not significantly affect the environment, it makes a “finding of no significant impact” (FON-SI) and its NEPA review ends.
Id.
§ 1508.13.
California Trout v. Schaefer,
58 F.3d 469, 472 (9th Cir.1995). The statute defining “environmental assessment is 40 CFR § 1508.9 , which provides as follows”:
“Environmental Assessment”:
(a) Means a concise public document for which a Federal agency is responsible that serves to:
(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.
(2) Aid an agency’s compliance with the Act when no environmental impact statement is necessary.
(3) Facilitate preparation of a statement when one is necessary.
(b) Shall include brief discussions of the need for the proposal, of alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.
“Effects” is defined in 40 CFR § 1508.8 , which provides as follows:
“Effects” include:
(a) Direct effects, which are caused by the action and occur at the same time and place.
(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.
Pursuant to 40 CFR § 1501.4 , a federal agency contemplating a project must determine whether to prepare an environmental impact statement. In doing so, the agency must determine under its procedures supplementing the NEPA regulations whether the proposal is either one that normally requires an environmental impact statement or one that normally does not require either an environmental impact statement or an environmental assessment. 40 CFR § 1501.4 (a). If the proposed action is not covered within either of these categories, the agency is required to provide an environmental assessment (“EA”) pursuant to 40 CFR § 1508.9 . 40 CFR § 1501.4 (b). Based on the EA, the agency determines whether to prepare an environmental impact statement (“EIS”). 40 CFR § 1501.4 . If the agency determines not to prepare an EIS it must prepare a finding of no significant impact (“FONSI”) and make the finding available to the affected public as specified in § 1506.6. 40 CFR §§ 1501.4 (e). A FONSI means a document briefly presenting the reasons why the action will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. 40 CFR § 1508.13 .
In the present case, Plaintiffs contend that NPS violated these principles by fail
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ing to develop an EIS for the Project. Specifically, Plaintiffs contend that Defendants violated NEPA by failing to consider all pertinent direct and indirect effects of the Project in its EA and FONSI, including degradation of the Merced River Corridor and cumulative effects of the Project. Plaintiffs also contend that Defendants inadequately responded to public comments and improperly concluded that a comprehensive EIS was not required because the Project would not significantly affect the human environment.
The Ninth Circuit has summarized the court’s role in review an agency’s decision’s in regard to NEPA requirements as follows:
A court should not substitute its judgment for that of the agency as to the environmental consequences of the agency’s actions.
Kleppe v. Sierra Club,
427 U.S. 390 , 410 n. 21, 96 S.Ct. 2718 , 2730 n. 21, 49 L.Ed.2d 576 (1976). The only role for a court is to insure the agency has taken a “hard look” at environmental consequences.
Id.
An agency’s determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable.
Foundation for North Am. Wild Sheep v. U.S. Dep’t of Agriculture,
681 F.2d 1172, 1177 (9th Cir.1982). In judging “reasonableness,” “[a] court should not substitute its judg-. ment for that of an agency if the agency’s decision was ‘fully informed and well-considered.’ ”
Friends of Endangered Species, Inc. v. Jantzen,
760 F.2d 976, 986 (9th Cir.1985), (quoting
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,
435 U.S. 519, 558 , 98 S.Ct. 1197, 1219 , 55 L.Ed.2d 460 (1978)).
B. Why NEPA Requirements Were Not Met
Section 102(2)(C) of NEPA requires that all federal agencies include a detailed statement of environmental consequences — known as an EIS — “in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332 (2)(C);
Kleppe,
427 U.S. at 394 , 96 S.Ct. at 2723 . The Council on Environmental Quality (CEQ) has promulgated regulations, see 40 C.F.R. §§ 1500-17 (1984), which bind federal agencies in implementing this requirement. Id. § 1500.3. Under the CEQ regulations an agency generally must prepare an EA to decide whether an EIS must be prepared. Id. § 1501.4(a), (b), (c);
Jones v. Gordon,
792 F.2d 821, 827 (9th Cir.1986).
CEQ regulations outline factors that an agency must consider in determining whether an action “significantly” affects the environment within the meaning of section 102(2)(C). These factors include, inter alia, (1) the “degree to which the effects on the quality of the human environment are likely to be highly controversial,” 40 C.F.R: § 1508.27(b)(4); (2) the “degree to which thq possible effects on the human environment are highly uncertain or involve unique or unknown risks,” 40 C.F.R. § 1508.27 (b)(5); (3) “[wjhether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by ... breaking [the action] down into small component parts,” 40 C.F.R. § 1508.27 (b)(7); and (4) “[w]hether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment,” 40 C.F.R. §, 1508.27(b)(10).
The standard to determine if an action will significantly affect the quality of the human environment is whether “the plaintiff has alleged facts which, if true,
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show that the proposed project may significantly degrade some human environmental factor.”
Foundation,
681 F.2d at 1177 -78 (quoting
Columbia Basin Land Protection Ass’n v. Schlesinger,
643 F.2d 585, 597 (9th Cir.1981)). “A determination that significant effects on the human environment will in fact occur is not essential.”
Id.
at 1178. “If substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared.”
Id.
(emphasis omitted).
Sierra Club v. United States Forest Service,
843 F.2d 1190, 1192-93 (9th Cir.1988).
B. Defining the Project
Plaintiffs contend that Defendants failed to adequately define the Project. In their motion for summary judgment, Plaintiffs claim that the “design/build” method of construction used on the Project caused an inadequate description of the Project and prevented a sufficiently detailed analysis of both environmental values and effects of the project by NPS. Plaintiffs argue that lead agencies must identify environmental effects and values in adequate detail so that they can be subject to economic and technical analysis, relying on 40 C.F.R. § 1501.2 which provides in part as follows:
Agencies shall integrate the NEPA process with other planning at the earliest possible .tíme to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts. Each agency shall:
(b) Identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses. Environmental documents and appropriate analyses shall be circulated and reviewed at the same time as other planning documents.
Plaintiffs also rely on 40 C.F.R. § 1502.14 , which is not on point because it concerns environmental impact statements, not environmental assessments. More on point is 40 C.F.R § 1500.1(b), which provides:
(b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate on the issues that are ■ truly significant to the action in question, rather than amassing needless detail.
In their motion for summary judgment, Plaintiffs specifically contend that because of the nature of the “design-build” project, NPS performed a substantial amount of analysis nearly six months after the FON-SI was issued. Plaintiffs claim that the post-decision Compliance Feasibility Paper and attached Cost Consideration Compliance Table for El Portal Road Improvements, Working Draft, January 19, 1998 (4 AR 01128-1141) demonstrates that NPS considered such items as not removing Cascade Dam, eliminating mitigation measures to cultural and historic resources, increasing cut walls, moving staging areas to sensitive species locations, expanding the road footprint and eliminating sewer repair requirements. Plaintiffs argue that NEPA and CEQ regulations specifically require this type of analysis to be performed prior to the decision'on a project. Plaintiffs argue that it was only at the later date that NPS actually defined the Project parameters, thereby skewing the impact analysis. Plaintiffs also rely on the declarations of Kattlemann and Sanders to argue that the description of the Project as “design/build” is inadequate and prevents a sufficiently detailed analysis of environmental values and effects of the project.
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Defendants dispute Plaintiffs’ contention that the Compliance Feasibility Paper, dated January 19, 1998, demonstrates that the parameters were not defined until six months after the FONSI was issued. Defendants explain that the Compliance Feasibility Paper came about because the initial proposals from potential contractors in response to the “request for proposals” contained costs far beyond the available funding for the Project. The purpose- of the Compliance Feasibility Paper was to explore possible ways to meet the Project objectives with available funds and within the parameters of the decisions made in the EA and FONSI. The cost cutting suggestions primarily addressed construction schedules, staging areas, and use of simulated stone in cut slope' walls and drainage systems. Expansion of the allowable footprint of the roadway was specifically rejected because it was recognized that it would be a change beyond the scope of the FONSI. Defendants argue that these same issue would have been faced if the Project had used competitive sealed bidding (instead of design/build construction) and the bids had come in too high.
In response to Defendants’ arguments regarding the Compliance Feasibility Paper, Plaintiffs argue that there were numerous proposed changes set forth, with no commitment either way that they would or would not be implemented. Some of these appear significant, such as “eliminate all but the most basic temporary revegetation requirements,” 4 AR 01133, “eliminate dam removal,” 4 AR 01134, and changes in the staging areas. Plaintiffs argue that there is now no guarantee as to what the contractor and defendants will now accept or reject as elements of the Project, considered beyond the analysis and public NEPA process of the EA and FONSI.
In general response to Plaintiffs’ contention that the design/build construction of this project has led to an inadequate description of the Project, Defendants first contend that both the draft and revised EA explicitly stated that “design/build” construction would be used for the Project. Defendants argue that if Plaintiffs objected to the use of the design/build method, any necessary litigation should have been initiated at that time, prior to the award of the design/build contract.
In further response to Plaintiffs’ contentions, Defendants argue at length that the Project was adequately described. Defendants argue that a 93 page preliminary design existed in the form of Phase I design plans, which were incorporated by reference into the Revised Environmental Assessment. Defendants assert that these engineering drawings, defined the scope and limits of the Project in detail on a station by station basis. Defendants state that these details included a preliminary alignment which defined the new Road alignment for impact purposes and the envelope where the contractor would be allowed to work. The plans further identify specific features and elements along the roadway which must be saved or avoided. Defendants claim that the Phase I design plans (70 AR) contained a preliminary alignment that showed' the footprint of the Project and enabled NPS to calculate for the EA and FONSI the size of the area that would be impacted.
Finally, Defendants argue that mitigation measures were incorporated into the Project to minimize identified environmental impacts below the level of significance. The mitigation measures are specific and are included in the EA. Specifically, as to the use of design/build, the Park Service imposed additional conditions including a staff of resource specialists (landscape architect, biologist, revegetation specialist, and archeologist) to conduct inspections and “to ensure that the reconstruction activities do not exceed the scope of the EA.” The mitigation measures are binding, and the contracting officer has authority to stop work of the contractor fails to carry
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out his written orders or perform contractual provisions.
In their Reply, Plaintiffs reiterate at length their claim that the design/build nature of the Project, did not provide an adequate project description. In response to Defendants’ claim that the Phase I design plans were incorporated by reference into the Revised or Final EA, Plaintiffs correctly argue that both the Phase I design plans and the Request for Proposal (“RFP”) were developed after the close of public comment, so that the public did not have an opportunity to review and comment upon them. Plaintiffs also correctly point out that the Final EA, into which Defendants incorporated by reference the Phase I design plans, was not subject to public comment. The Phase I plans were not approved until August 28, six days after the Revised EA was issued, and the same day as issuance of the FONSI and approval of the project. 4 AR OHIO, 70 AR 07307. Similarly, Plaintiffs assert that the Biological Assessment was published only a few days prior to the publication of the EA. 2 AR 00542.
In addition to arguing that the public did not have an opportunity to review the document relied upon by Defendants to demonstrate that they adequately defined the Project, Plaintiffs argue that NPS did not have adequate description of the Project before it reached its final finding of no significant impact. Plaintiffs argue that only the documents the agency had before it at the time it issued the FONSI can be relied upon to support Defendants’ position. Specifically, Plaintiffs claim that Defendants could not have considered the Phase I design plans or the Biological Assessment, because they were published only a few days before the publication of the Revised EA.
In response to Plaintiffs arguments regarding the incorporation of the Phase I design plans in the Revised EA, Defendants contend that the plans existed and were considered before they were approved by the Regional Director for the NPS on August 28, 1997. Defendants argue that the Draft Phase 1 Design Plans were developed over a period of time using numerous field reviews and utilizing many different discipline and resource specialists and were signed by the Division Engineer of the Federal Highway Administration on August 20, 1997, and by the NPS Denver Service Center and the Superintendent for Yosemite National Park on August 21, 1997. Defendants argue that portions of the draft Phase I Design Plans appear throughout the project record.
Relatedly, Plaintiffs argue that the NPS acted wrongly in incorporating the Phase I design plans into the Revised EA. Plaintiffs rely on an Eastern District case in which Judge Karlton held as follows:
I begin by noting that there is no apparent reason’ to believe that an incorporation process is appropriate relative to an EA. Thus although the CEQ regulations permit, under stringent standards discussed below, incorporation by reference in an EIS, 40 C.F.R. § 1502.21 , no such provision is made for an EA. On the contrary, the regulations appear to contemplate that an EA will be a concise public document which briefly presents sufficient evidence and analysis for determining whether to prepare an EIS or a FONSI. 40 C.F.R. § 1508.9 . Given the purpose of an EA, such restriction on the document does not appear unreasonable. As I explained above, the threshold for requiring an EIS is quite low. Thus only in those obvious, circumstances where no effect on the environment is possible, will an EA be sufficient for the environmental review required under NEPA. Under such circumstances, the conclusion reached must be close to self-evident and would not require an extended document incorporating other studies. Moreover, because
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the purpose of an EA is to decide whether an EIS must be prepared, 40 C.F.R. § 1501.4 (a), (b), (c);
Jones v. Gordon,
792 F.2d 821, 827 (9th Cir.1986), the document itself (and any attachments or appendices included with it) must facilitate or enable public comment concerning the agency’s determination that the project does not significantly affect the environment. Cf.
Sierra Club v. U.S. Forest Service,
843 F.2d 1190, 1193 (9th Cir.1988).
Moreover, even if an EA need not stand on its own, the standards applicable to the incorporation of material into a document created in response to the regulations implementing NEPA are relatively rigid. Application of those standards to the instant EA demonstrates that neither the 1981 DEIS nor the 1983 EA were properly made a part of the determination at bar.
As I have previously explained, under certain circumstances the law permits incorporation of materials by reference into an EIS. [FN13] The propriety of such incorporation is dependent upon meeting three standards: 1) the material is reasonably available; 2) the statement is understandable without undue cross reference; and 3) the incorporation by reference meets a general standard of reasonableness. See California v. Bergland, 483 F.Supp. at 485 (incorporation of material into a DEIS), affd. in relevant part, California v. Block, 690 F.2d at 765. Application of the three criteria noted above suggests that the court must find that the 1981 DEIS and the 1983 EA were not incorporated into the 1987 EA.
Natural Resources Defense Council v. Duvall, 777
F.Supp. 1533, 1538-39 (E.D.Cal.1991). In footnote 14, Judge Karlton held that the government has the burden of persuasion on this issue. Applying the holding to the present case, Plaintiffs argue that the Phase I design plans were not available until the day of approval or after approval, the EA was not understandable without cross reference, and Defendants were not reasonable in withholding in such information from the public review process. In response, Defendants argue, as stated above, that the Phase I Design Plans existed and were considered before the issuance of the EA.
Finally, Plaintiffs further argue that the Phase I design plans and the RFP do not provide a legally adequate project description. Plaintiffs argue that the Phase I plans identify specific features to be saved, yet none identify the extent of removal, blasting and damage to be done.
In their Supplemental Brief, Defendants contend that NPS presented the scope of the Project to the public through several means, including the draft EA, the Revised EA, open houses, planning updates, and videos.
The court finds, as Plaintiffs argue, that because the Revised EA was issued on August 22, 1997, after the close of the public comment period and the scientific review of the project impacts, it cannot be relied upon as meaningfully providing the detailed definition of the Project required under § 1501.2. The court further finds that Defendants have pointed to nothing in the draft EA showing that document met the requirements of § 1501.2. The draft EA speaks in generalities and contains few details of what would actually be done on the Project, thus making it impossible to relate project elements to project impacts. Lacking is sufficient detail to understand the nature, extent and location of rock removal, tree removal, vegetation removal, rebuilding of guard-walls (particularly the height), and construction of fills into the Merced River or riparian corridor. -Further, there is no mention of uniformly raising the road bed by three feet, which Defendants contend in response to Plaintiffs’.challenge to the increased height of the guardwalls.
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In regard to the open houses and planning updates, Plaintiffs argue that NEPA requires an adequate project description and evaluation of alternatives in an EA or EIS, and that information presented in another form does not meet this requirement unless it is fully incorporated into the'EA or EIS. Plaintiffs cité
Natural Resources Defense Council v. Duvall, 777
F.Supp. 1533 (E.D.Cal.1991), in which Judge Karlton discusses the propriety of incorporating by reference other documents into an EA. In so doing, Judge Karlton states, “Moreover, because the purpose of an EA is to decide whether an EIS must be prepared, ... the document itself (any attachments or appendices included with it) must facilitate or enable public comment concerning the agency’s determination that the project does not significantly affect the environment.”
Id.
at 1538-39 . The court finds this reasoning to be persuasive, and therefore rejects Defendants’ argument that the open houses or project updates may be considered in tandem with the EA in determining whether the EA provided the public with an adequate description of the Project.
Plaintiffs also persuasively argue that the videos referred to by Defendants do not constitute a Project description as required under NEPA. The January 1997 video was produced before the Project came into existence and-the October 1998 video was produced after the Project was approved. Neither of these videos satisfy the requirement of an adequate project description under NEPA.
In summary, Plaintiffs contend that Defendants failed to comply with the requirement in 40 C.F.R. § 1501.2 (b) that each agency shall “Identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses.” Plaintiffs claim both that insufficient detail was provided to allow the public a meaningful opportunity to comment on the Project during the -planning stages and also that insufficient detail existed for Defendants’ own experts to express an informed opinion and for Defendants to make an informed decision.
Based on the foregoing, the court concludes that Plaintiffs’ contentions are meritorious and that Defendants violated NEPA by failing to comply with the requirement under 40 C.F.R. § 1501.2 (b) that each agency shall “Identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses.” The court finds that Defendants acted arbitrarily and capriciously in failing to provide an adequate description of the Project. The court will grant Plaintiffs summary adjudication on this issue and will issue a corresponding declaratory judgment. The issue of in-junctive relief will be discussed below.
C. Identification and Evaluation of Significant Adverse Impacts
NEPA requires federal agencies to prepare an EIS for “major federal actions 1536 significantly affecting the quality of the human environment.” 42 U.S.C. S4332 (2)(C). Plaintiffs contend that Defendants failed to adequately identify and evaluate significant adverse impacts and so acted arbitrarily or capriciously in not preparing an EIS. “[T]o prevail on a claim that [a federal.agency] violated its statutory duty to prepare an EIS, a ‘plaintiff need not show that significant effects will in fact occur.’ ”
[Idaho Sporting Congress v. Thomas,
137 F.3d 1146, 1150 (9th Cir.1998)]. It is enough for the plaintiff to raise substantial questions whether a project may have a ‘significant effect’ on the environment.
Id.
1. Controversy
Initially, Plaintiffs rely on 40 C.F.R. § 1508.27 , which provides that “significantly” as used in NEPA requires consider
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ations of both context and intensity. 40 C.F.R. § 1508.27 (b) provides as follows:
(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:
(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique 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.
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of' significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
In arguing that Defendants failed to adequately identify and evaluate significant adverse impacts, Plaintiffs rely on subsection (4) above to argue that Defendants failed to correctly evaluate the intensity of the impacts. Specifically, Plaintiffs contend that the Administrative Record is replete with examples of controversy over the environmental effects of the Project. Specifically, Plaintiffs contend that the EA, BA, FONSI and Response to Comments are in direct conflict with and ignore the advice of long-time Park employees and experts. Plaintiffs cite a letter by Yosemite National Park biologist Steve Thompson of April 27, 1997, and a letter of Yosemite National Park historian Jim Snyder, dated April 10,1997. In these letters, the writers express their disagreement with the NPS decision to implement the Project.
In response, Defendants cite
Northwest Environmental Defense Ctr. v. BPA,
117 F.3d 1520 , 1536 (9th Cir.1997), in which the Ninth Circuit explained that,
“A federal action is controversial if ‘a substantial dispute exists as to [its] size, nature, or effect.’
LaFlamme,
852 F.2d at 400-01 (internal quotations and citations omitted). Controversy does not refer to the existence of opposition to a use.”
Id.
at 401.
Defendants argue that in their letters, neither Mr. Thompson nor Mr. Snyder were
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offering expert views. Rather, Defendants argue, they were disagreeing with the policy decision to reconstruct the Road. Defendants argue that policy disagreements of this nature do not rise to the level of “controversy” within the meaning of § 1508.27(b)(4).
In their Reply, Plaintiffs argue that the Record establishes that Thompson and Snyder are specialists, and argue that when an EA is at issue, the disagreement among experts is an important factor as to whether substantial questions have been raised about environmental impacts and the need for an EIS.
See Blue Mountains Biodiversity Project v. Blackwood,
161 F.3d 1208, 1212 (9th Cir.1998). In summary, Plaintiffs claim that “the significant disagreement among experts on the viability of the project,” and the post hoc mitigation measures that were adopted, proves that there was a “substantial question” raised as to the environmental impact of the Project and that an EIS was needed.
The court finds that Plaintiffs’ contention has merit. Contrary to Defendants’ contention, the letters of Thompson and Snyder both address concerns regarding specific impacts of the Project, and are not limited to opposition to the Project as a whole. The court concludes that its finding supports the larger conclusion that Plaintiffs have raised substantial questions as to whether the Project may have significant effects on the human environment.
2. Biological Resources
In further support of their claim that Defendants failed to adequately identify and evaluate significant adverse impacts of the Project, Plaintiffs present several contentions that NPS failed to adequately address significant adverse effects on biological resources.
a. biological surveys
Plaintiffs contend that inadequate biological surveys were done. Plaintiffs point out that on March 21, 1997, in response to the emergency repairs and safety improvements being made on the Road after the flood, the NPS wrote that the planned safety improvements to the Road would have a “severe and direct impact” on biological resources within the zone of blasting and slope restoration, and indirect impacts to those resources over a larger area. 2 AR 00182. The report also stated that, “[ejxcept for Thompkin’s sedge, for which the impact can be accurately quantified, not enough is known about other sensitive species to ascertain potential impacts with any degree of certainty. This applies to possible bat roosts, as well as to sensitive invertebrates and plants for which appropriate habitat may be present.”
Id.
Plaintiffs claim that six weeks later, however, before doing any other species surveys, on May 7, 1997, the NPS issued the Draft EA and declared that, “[application of mitigation measures during and after the construction period would assure that construction-related impacts on sensitive species would be minimized as much as practicable and would not be significant.” (2 AR 00477). The Draft EA also states that there is no data “that suggests that the proposed action would impact sensitive wildlife species in the area.”
Id.
Plaintiffs allege that although the draft EA states that a Biological Assessment would address the sensitive species designated by U.S. Fish and Wildlife, the Biological Assessment was completed before any surveys were done on any of the sensitive species in the project other than federally listed Thompkin’s Sedge. Plaintiffs further allege that if any other surveys were performed, they are not included in the record and were therefore not relied on by the agency in preparing the EA or in issuing the FONSI. Furthermore, Plaintiffs contend that the FONSI mitigation measures requiring species surveys be conducted before road construction is fur
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ther evidence that no surveys for species were performed prior to assessing environmental consequences in the Final EA and prior to issuing the FONSI.
In response to Plaintiffs’ contentions that inadequate biological surveys were done, Defendants contend that Plaintiffs ignore statements in the revised EA and FONSI establishing that further studies were done and sensitive species were either absent from the project vicinity or would suffer insignificant impacts from construction, citing 2 AR 00617 and 4 AR 00971. The first citation given by Defendants, 2 AR 00617, comprises page 81 of the EA. Contained on that page is the following language:
No data exist that suggest that the proposed action would impact sensitive wildlife species in the area. Following recommendations in the draft EA, a biological assessment' (BA) has been prepared throughout the construction area to address the sensitive species listed in Table 4.1. Results from this BA determined whether or not sensitive species exist in the immediate area and developed mitigation measures to ensure that construction activities will not significantly impact any sensitive species that may occur in the area.
The field surveys and analysis completed during the BA found that sensitive species identified in the draft EA as possibly being present in the project area are absent from the project vicinity or would suffer insignificant impacts to their population from' construction. This includes federally listed threatened and endangered species. The USFWS has reviewed the BA and concurs with the findings. (Appendix A).
The second citation given by Defendants, 4 AR 00971, comprises page 12 of the “Response to Comments for El Portal Improvements,” issued in August of 1997. That page provides in part as follows:
A few comments were received expressing concern for wildlife and sensitive species. As previously mentioned, habitat areas along the El Portal Road and the Wild and Scenic Merced River will either be preserved or restored as a part of the proposed project. A NPS staff of natural resource specialists (including a landscape architect, a biologist, and a revegetation specialist) will make inspections to review the extent of impacts to the environment and maké sure the reconstruction activities do not escalate beyond the scope of the environmental assessment. This staff will also direct the contractor where to place snow fence to delineate construction limits and review construction plans submitted during the design/build process.
Additional Biological Field Studies. Following recommendations in the draft EA, substantial additional biological field studies and analysis have been conducted. The surveys found that sensitive species identified in the draft EA as possibly present in the project area are absent from the project vicinity or would suffer insignificant impacts to their populations from construction. These field studies and analyses have focused on identifying presence of sensitive species in the corridor area and evaluating the potential for impact on them. The studies were conducted in May and June, 1997. The studies were conducted by experienced biologists with expertise in bats and other sensitive mammals; insects; invertebrates; birds, including raptors, owls, and songbirds; amphibians; and reptiles. Surveys for sensitive plant species were conducted by Yosemite National Park staff in April 1997. The NPS determined that proposed action will not adversely affect any listed species or their habitats. The U.S. Fish and Wildlife Service (USFWS) concurred with the finding.
Defendants argue that the studies referred to in these two statements were conducted
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in April through June 1997, before the FONSI, and were approved by the U.S. Fish and Wildlife Service.
See Friends of Endangered Species v. Jantzen,
760 F.2d 976, 987 (9th Cir.1985) (where virtual agreement existed among local, state, and federal government officials, private parties, and local environmentalists on a project and on the content of the EIR/EA, the extensive coordination and agreement between the state and federal government was a -factor supporting the agency’s decision not to prepare an Environmental Impact Statement).
In response to Defendants’ claims that surveys were conducted in April through June of 1997, Plaintiffs contend in their Reply that if such studies were done, they are not in the administrative record. Plaintiffs argue that the court cannot assume such surveys exist unless they are produced. In response to the statement in the Draft EA that there is no data “that suggests that the proposed action would impact sensitive wildlife species in the area,” Plaintiffs argue that Defendants failed to do the necessary research to reach this conclusion.
Defendants also argue that the EA and FONSI imposed a mitigation measure that prior to any construction, there would be additional surveys for “sensitive plants, bat roosts, nesting birds, and snails to at least 20 feet outside the construction zones.” 4 AR 01111. Conservation measures are required if any sensitive species are located.
Id.
In addition, the Park Service Staff of natural resources specialists were required to conduct inspections to make sure the reconstruction activities did not escalate beyond the scope of the EA.
Id.
In their Supplemental Brief, Defendants cite
Friends of Endangered Species, Inc. v. Jantzen,
760 F.2d 976 (9th Cir.1985), for the principle that NEPA does not require the forefront of scientific methodology. However, in
Friends of Endangered Species ,
the Ninth Circuit held as follows:
NEPA does not require that we decide whether an EIR is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology. See
Hart and Miller Islands Area Environmental Group, Inc. v. Corps of Engineers of the U.S. Army,
505 F.Supp. 732, 755 (D.Md.1980);
Cabinet Mountains Wilderness v. Peterson,
510 F.Supp. 1186, 1190-91 (D.D.C.), affirmed 685 F.2d 678 (D.C.Cir.1982).
Our task is simply to ensure that the procedure followed by the Service resulted in a reasoned analysis of the evidence before it, and that the Service made the evidence available to all concerned. Save Lake Washington v. Frank,
641 F.2d 1330, 1337 (9th Cir.1981);
Life of the Land v. Brinegar,
485 F.2d 460, 472 (9th Cir.1973), cert. denied, 416 U.S. 961 , 94 S.Ct. 1979 , 40 L.Ed.2d 312 (1974). The Service, in the present case, sought out and considered extensive comments on the Biological Study during the public comment period and afterward, and incorporated these comments into its Permit Findings and final Plan. Because the Service was unaware of appellant’s specific field study criticisms before making its decision, we certainly cannot fault the Service for failing to address these criticisms.
Id.
at 986 (emphasis added). Whether the procedure followed by the NPS “resulted in a reasoned analysis of the evidence before it” and whether the NPS made the evidence available to all concerned is exactly what is now at issue.
In their Supplemental Brief, Defendants present the declaration of Thomas Wilkinson Mulroy regarding the research and field surveys conducted in connection with the NEPA analysis for the Project. Defendants assert that “[a]ll available field notes and survey reports prepared in relation to the BA have been attached to the Declaration of Dr. Thomas Mulroy.” Sup
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plemental Brief, 24:28 — 25:1. Defendants rely upon this declaration to establish that the conclusions of the Biological Assessment were based on extensive research and field surveys. However, Defendants state that the field notes and survey reports “were not included in the Administrative Record for this case because, as explained by Dr. Mulroy, the contract between Science Applications International Corporation (SAIC) and the National Park Service did not require that SAIC provide intermediate survey reports or field notes to the NPS. As explained by Dr. Mulroy, the BA followed immediately from completion of the filed [sic] studies, obviating the need for an intermediate product.”
As Plaintiffs point out, through this statement, Defendants have admitted both that the “hard data” supporting the BA was not available to the public for review and that it was never reviewed by NPS. The court finds, therefore, that in regard to the evaluation of biological resources, Defendants have failed to comply with the requirement of 40 C.F.R. § 1500.1 (b) that, “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” The court concludes that this finding supports Plaintiffs’ main contention that Defendants failed to identify and evaluate significant adverse impacts.
c.
revegetation plan
Plaintiffs contend that the Biological Assessment makes an unfounded proposition which was used to support NPS’s decision to issue a FONSI. Specifically; it states that, “[t]he unique characteristics, special features, and habitat areas along El Portal Road and the wild and scenic Merced River will either be preserved or replaced as part of the proposed project.” 5 AR 01199. Plaintiffs argue that neither the EA nor the FONSI expláin how the NPS will replace 100 year-old trees that have been or are being cut down. Plaintiffs assert that even if the NPS wanted to replace cut trees, they have no information on the number, size or species of trees being removed during the project construction. Plaintiffs further contend that the Tompkiris sedge salvage operation was done long before the revegetation plan was issued on May 20, 1999. Plaintiffs claim that approximately 90% of the sedge dies after being transplanted, which Plaintiffs argue is a significant impact.
In response, Defendants argue that the Revised EA explained that except for the roadway itself, the area affected would be revegetated. 2 AR 00615. The Revised EA also pointed out that vegetation in the area is resilient because of the naturally high occurrence of floods, fires-and rock-slides.
Id.
Defendants argue that it cannot be seriously contended that the Park Service committed a clear error in judgment in concluding these impacts would not be significant.
Plaintiffs argue in their Reply that the site specific revegetation plans were not part of the EA, BA or FONSI, and were not created May 20, 1999. Plaintiffs complain that the plan is incomplete because it still does not “establish clear-cut success criteria,” spell out the details of a long-term monitoring plan, discuss remedial action to adopt if the success criteria are met, provide specifics on the number of plants of each species to be established, or provide maps showing where these plants will be located.
Plaintiffs quote Park biologist Thompson, who advised that, “the use of ‘concrete-reinforced’ rock fill leaves little chance for re-establishment of riparian vegetation.” 6 AR 01656. In response, Defendants argue that the Park Service required mitigation measures including irregular ledges, shelves, planting pockets, benches,' and irregularities designed into
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cuts and slopes for vegetation and revege-tation. 2 AR 00971, 01113-1114.
In their Supplemental Reply Brief, Defendants argue that mitigation measures in the form of the revegetation programs are mandated by contract but can only be implemented upon completion of the Project. This is because the revegetation programs cannot proceed on unstable slopes or with uncontrolled drainage. Further, Defendants provide a declaration by the Natural Resources Project Manager for the Flood Recovery Office at Yosemite National Park, stating that the scientific panels and audit reports are “unnecessary and will not increase the effectiveness of the revegetation efforts on the Project.” Defendants rely on the Declaration of Susan Fritzke, stating that the revegetation plan for the Project is being developed and will be implemented by Bitterroot Restoration under contract with NPS.
Defendants dispute Plaintiffs’ assertion that an inventory needs to be taken of vegetation which has been removed, arguing that the process of ecological restoration is not meant to replace one tree for each tree removed. Defendants also dispute Plaintiffs’ claim that there has been an irretrievable loss of genetic diversity in regard to Thompson’s sedge. Defendants assert that plants and seeds were salvaged from the Project area, and will be replanted into appropriate zones.
The' court concludes that in essence, Plaintiffs contend that the revegetation plans provides by Defendants are not sufficiently specific, while Defendants argue that because of the nature of the Project as a design/build project, they are unable to provide site-specific revegetation plans until the Project is completed. After reviewing all of the parties’ arguments, the court concludes that Defendants’ reliance upon a revegetation plan that was not yet developed in issuing the EA adds weight to Plaintiffs’ argument that substantial questions exist as to whether the Project will have a significant effect on the environment.
d. bat species
Plaintiffs contend that Defendants have failed to consider the impact of the Project on the several species of bats that live within the Project area. Specifically, Plaintiffs claim that in the EA, no mitigation measure was developed to accommodate the needs of bats sensitive to noise during spring nesting. Defendants argue that the EA contains a mitigation measure mandating that “Blasting will not occur between May 1 and September 30 to avoid impact during the reproductive season of bats.” 2 AR 00632. In their Reply, Plaintiffs argue that this mitigation measure did not address the concern of NPS experts that there be protection for nesting bats, so that blasting should occur only in October and November. Plaintiffs also complain that NPS has recommended that to avoid likely roosting and foraging habitat “if possible,” which they claim leaves the habitat open to destruction.
Plaintiffs discuss at length the report by Defendants’ own bat expert, Dr. Elizabeth Pierson. The court agrees with Plaintiffs that Dr. Pierson’s report as a whole expresses the opinion that the impacts of the Project to the rare bats in the Merced River Canyon and Yosemite would be significant. While Dr. Pierson recommends mitigation measures, nothing in her report suggests that these measures, even if fully implemented, would change the fact that the impact of the Project on the bats will be significant. Declaration of Thomas W. Mulroy, “Bat. Surveys for El Portal Road Project.” Defendants do not meaningfully reply to this fact. The court must conclude, therefore, that Plaintiffs have raised substantial questions as to whether the Project will have a substantial effect- on the environment in the form of the local bat population. ■
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e. trout
Plaintiffs contend that Defendants have inadequately assessed the impact of the Project on rainbow trout in the Project area. Plaintiffs claim that in 1982, NPS identified the presence of indigenous rainbow trout in the project area, and then again in 1997 said that rainbow trout were present. 8 AR 2159, 2 AR 00176. Plaintiffs claim that “without any surveys or data to support the determination, NPS stated in the Final EA that Rainbow Trout have disappeared from the project area. ■ 2 AR 00448.” Plaintiffs’ Points and Authorities, 28: 22-24.
In response, Defendants assert that in the Final EA, NPS asserts that the native rainbow trout, once present, disappeared due to competition with non-native fish. 2 AR00584. Defendants first argue that Plaintiffs have produced no evidence that NPS is wrong. Second, Defendants argue that whether there are Rainbow Trout in the area makes no difference to the Project, because there are golden trout, cutthroat trout, brown trout, and the Arctic grayling still present. Thus, Defendants argue, whether rainbow trout are also still present is not a factual dispute material to issues connected with the reconstruction of the Road.
The court finds that Defendants’ arguments entirely miss the point. While the Record establishes that rainbow trout may be present, Defendants have pointed to nothing indicating that NPS evaluated the current presence of rainbow trout in the River in a way that could be reviewed by either the public or Defendants themselves, or that NPS evaluated the potential for impact on that species by the Project. As Plaintiffs argue, the presence or absence of the species is entirely relevant to what measures are taken to ensure no significant impact upon the riparian corridor of the Merced River. The court must conclude, therefore, that Plaintiffs’ arguments regarding rainbow trout add weight to Plaintiffs’ contention -that substantial questions exist as to whether the Project will have a significant effect on the environment.
In summary, in light of the forgoing discussion, the court finds that Plaintiffs have demonstrated the existence of substantial questions as to whether the Project may have a substantial effect upon the human environment in regard to biological resources. These substantial questions rest on issues involving biological surveys, the revegetation plan, bat species, and trout.
8. Enroachment into river and riparian habitat
Plaintiffs contends that the EA never describes how many acres of water, riparian habitat or river channel will be disturbed by the Project and that this precluded the NPS from fully evaluating the environmental consequences of the project. Plaintiffs further note that NPS stated that in some cases, riverbed enroachment “will cause backwater, dropping sediments, and redirecting river flows back to the main channel.” 8 AR 02069. Plaintiffs claim that these impacts are not addressed in the EA or FONSI. Finally, Plaintiffs argue that the requirement that “the contractor would avoid enroachments on the river ... where possible,” 5 AR 01200, is not a mitigation measure, but is merely a suggestion that leaves the contractor with the option to enroach on the river where it deems necessary without any penalty.
In response, Defendants contend that the EA explained that the preexisting road fill already encroaches on the River. 2 AR 00611. The EA further disclosed there would be some further enroachnent, but that it would be limited. ■
Id.
The EA also pointed out that the road improvements would improve current conditions by increasing drainage and reducing erosion
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and sedimentation. 2 AR 00611-13. Finally, Defendants argue that mitigation was imposed requiring the contractor to avoid enroaehment on the river when possible, and slope rations were required that would minimize impacted areas. 4 AR 01114.
The court finds merit in Plaintiffs’ arguments that the lack of specificity regarding the enroaehment on the river and riparian habitat precluded NPS from fully evaluating the environmental consequences of the Project. The court concludes that this finding adds weight to Plaintiffs’ contention that substantial questions exist as to whether the Project will have a significant effect on the environment.
A
Cascade Dam
Finally, Plaintiffs contend that NPS failed to take the requisite “hard look” at the impacts associated with the removal of the Cascade Dam. Plaintiffs state that the NPS planned to remove the Cascade Dam as early as 1982, 8 AR 2146, but at that time, there was concern that the removal of the dam conflicted with the General Management Plan. 8 AR 2170. Plaintiffs state that the NPS reapproached the issue in 1987, again filed an EA for the removal of Cascade Dam. 8 AR 2182. The EA stated that, “[t]he removal of the dam structures below the streambed level was rejected as being excessive because the potential effects on the environmental and the lateral support of the roadway could be adversely affected.” 8 AF 2200. A subsequent 1989 report discussed several series impacts of removal of the dam. 8 AR 2240.
Plaintiffs claim that despite the previously documented significant impacts associated with the dam removal, the NPS decided in May 1997 that it “will not address removal in our 140 EA other than reference the appropriate planning documents.” 8 AR 2092. Plaintiffs also claim that it was not until August 12, 1997, that “the NPS staff began developing the preferred alternative for the dam removal and road realignment at the intersection of Highway 140/120, long after the public comment period on the draft EA had ended and only days before the FONSI was issued.” Plaintiffs’ Points and Authorities, 30:17-19. Additionally, Plaintiffs claim that the results of sampling the bottom sediments from the impounded water behind the dam was issued on September 3, 1997, after the approval of the Project. 8 AR 2128.
In response to Plaintiffs’ claims about Defendants’ analysis of the removal of Cascade Dam, Defendants assert that the removal of the dam was disclosed in the Revised EA, which explained that the removal of the dam will “restore natural channel grades and processes along that segment of the river.” 2 AR 00563, 00612. Further, the Revised EA explained that the removal of the dam was “addressed in a separate environmental document (NPS 1987,1995).”
Defendants argue that the purpose of the removal of Cascade Dam is to restore the natural condition of the river, and that Plaintiffs presumably do not object to that. Finally, Defendants argue generally that any challenge to the removal of the dam should have been brought long ago, and addressed to the environmental documents the Park Service prepared on that proposed action.
In their Reply, Plaintiffs argue that there is no evidence in the record shows that the removal of the dam will restore the natural condition of the river. Plaintiffs further argue that the removal of the dam in this project is unique, because it also includes a realignment and widening of the intersections at Highways 140 and 120.
In their Supplemental Brief, Defendants argue that removal of Cascade Dam was
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included in .the Draft EA, describe the supporting preexisting documents which were incorporated, describe the efforts taken to comply with water quality standards, and again emphasize the intent to restore natural conditions. However, none of this directly addresses Plaintiffs’ contention regarding the lack of analysis of significant impacts on the environment caused by removal of the dam.
The court concludes that Plaintiffs have demonstrated that substantial questions exist as to whether the removal of Cascade Dam will have a significant effect on the environment.
5. Historical and Cultural Re-sourcés/Scenic
Under this heading, Plaintiffs contend that NPS failed to adequately evaluate impacts associated with increased traffic on the reconstructed road and any associated safety issues. Plaintiffs claim that the NPS did not analyze impacts from realignment of the road on speed of travel or on safety, nor did it assess the need for a wider road to improve safety after the spring 1997 safety improvements were completed.
In response to Plaintiffs’ contention that the 1997 safety improvements solved the problems with the Road, Defendants point to the language in the EA explaining the 1997 emergency repairs fixed six portions, but that “accident have occurred along the entire length of the roadway” and that the remaining portions consist of “substandard geometric conditions and insufficient lateral clearance.” 2 AR 00621. Further, the emergency repairs were only temporary. 2 AR 00297.
Defendants argue that how the road improvements will encourage more, as opposed to provide safer, travel is unclear. Defendants argue that after completion of the improvements, El Portal will remain a narrow,5 winding, two-lane mountain road with a speed limit of 35 miles per hour. Defendants contend that it acted within its discretion in modernizing the road so that buses can stay on the right side of the center line, and improving drainage to prevent washouts and erosion.
The court concludes that Plaintiffs have -not demonstrated that substantial questions exist as to whether safety issues will have a significant effect on the environment. Therefore, Plaintiffs have not demonstrated that Defendants acted arbitrarily or capriciously in regard to properly considering safety issues associated with the Project.
D. Cumulative Significant Adverse Impacts
Plaintiffs contend that Defendants violated NEPA by failing to evaluate the cumulative significant adverse impacts of the Project. Plaintiffs’ specific claim is somewhat vague, but Plaintiffs seem to claim that Defendants failed to consider the cumulative impacts as to bats, riparian habitat, and the rare river ecosystem. Plaintiffs further claim that the NPS failed to disclose future projects to arise out of the Project. Specifically, Plaintiffs claim that the NPS intended to use the staging areas for future development, but did not disclose this in the EA and did not evaluate the cumulative affects associated with these future activities. Plaintiffs rely on 40 CFR § 1508.25 (a), which provides in part:
Scope consists of the range of actions, alternatives, and impacts to be considered in an environmental impact statement. Thé scope of an individual statement may depend on its relationships to other statements (SS1502.20 and 1508.28). To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:
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(a) Actions (other than unconnected single actions) which may be:
(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:
(1) Automatically trigger other actions which may require environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) ,Are interdependent parts of a larger action and depend on the larger action for their justification.
(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.
“Cumulative impact” is defined in 40 CFR § 1508.7 as follows:
“Cumulative impact” is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
In response to Plaintiffs’ contention, Defendants contend that both the draft and revised EA include lengthy descriptions of cumulative impacts, which fully discuss the issues addressed by Plaintiffs. 2 AR 00496-503, 2 AR 00640-48. The revised EA discusses the overall impact of the Project on sensitive species, including bats, and states that the Project would not create significant cumulative impacts on such species because the Project, along with its mitigation measures, has been designed to have only minimal impacts on bats and other sensitive species. 2 AR 00490-92, 2 AR 00632. Defendants further contend that they evaluated cumulative impacts for the Merced Canyon ecosystem and its riparian areas, and concluded that the Project would not cause significant cumulative impacts to vegetation communities in the Merced Canyon. 2 AR 00615, 00641-44.
Finally, Defendants contend that Plaintiffs are incorrect in asserting that the NPS did not discuss staging areas in the EA. Use of five small staging areas is described in the EA and the contract, along with specifics for use and mitigation. 2 AR 00575, 72 AR 07825-828. Further, correspondence in the Administrative Record reflects that post-Project grading would be done on these sites to limit erosion and improve drainage. 9 AR 02335, 72 AR 07825-828. Defendants therefore conclude that Plaintiffs’ contentions regarding cumulative impacts are not supported by the Record.
In their Reply, Plaintiffs argue that Defendants improperly failed to adequately evaluate cumulative impacts in failing to consider the impact of the Project in connection with other, similar plans being developed throughout the Park. Plaintiffs discuss the Yosemite Lodge case, and assert that this case is factually analogous. Plaintiffs, however, provide no analysis to support this conclusion.
The court finds that Plaintiffs have not demonstrated that Defendants acted in an arbitrary or capricious manner in evaluating the cumulative impacts from the Project.
E. Segmenting the Road Project from Related Planning Processes
Plaintiffs contend that NPS is presently attempting to create a comprehensive transportation plan for Yosemite on a region-wide basis. Plaintiffs contend that
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the Project should have been part of the comprehensive and regional planning efforts of the NPS. Plaintiffs contend that instead, Defendants have separated the Project from an overall transportation and Yosemite National Park planning process, attempting to treat it as an isolated effort.
Plaintiffs claim that Defendants’ failure to include the Project as part of the comprehensive and regional planning effort has resulted in a failure to evaluate the cumulative land use impacts associated with road improvement, particularly in terms of increased traffic facilitated by the improved road. Plaintiffs disparage NPS reliance on a future, as yet not adopted, vehicle registration system as the basis for concluding that there would be no cumulative adverse impacts. Plaintiffs claim this is a classic case of “segmentation,” in which an agency splits a large project into small pieces in order to avoid detailed environmental review.
In response, Defendants state that they assume that in arguing that the Project was improperly segmented out of the overall transportation and Park planning process, Plaintiffs are referring to the Valley Implementation Plan and/or the Yosemite Valley Plan. Defendants contend that the Project had independent utility and was not been improperly segmented from other Park plans.
Defendants contend that Plaintiffs have miseharacterized the scope and intent of the two other Yosemite plans to which they apparently refer: the Valley Implementation Plan and the Yosemite Valley Plan (“the Valley Plan”). Defendants argue first that the Valley Implementation Plan, rather than being “a comprehensive plan for implementing the goals of 1980 General Management Plan” as described by Plaintiffs, was focused on implementing select GMP goals in and for Yosemite Valley. Defendants quote a Federal Register Announcement, 62 Fed.Reg. 60264 (Nov. 7, 1997), which describes the Valley Implementation Plan as presenting proposals for the use and management of the Valley’s developed areas in furtherance of goals for the Valley. Defendants further note that the Valley Implementation Plan has been terminated and combined into the Valley Plan.
In regard to the Valley Plan, Defendants argue that rather than being a comprehensive transportation plan for Yosemite as described by Plaintiffs, the Valley Plan focuses on Yosemite Valley, not the entire Yosemite National Park. Defendants quote the Federal Register Notice of Intent for the Valley Plan, which states that the Valley Plan, “consolidates ongoing conservation planning and impact analysis efforts into one plan for the valley.” 63 Fed.Reg. 69803 (December 16, 1998). Defendants also argue that the Valley Plan is also not a plan for “regional transportation,” a term that refers to movement of visitors between the Park and surrounding areas via public transportation. Defendants argue that the Federal Register Announcement makes clear that the Valley Plan does not include regional transit.
As their second major argument, Defendants argue that the Project does not meet the criteria for consideration with the Valley Implementation Plan or the Valley Plan in a single NEPA document. Pursuant to 40 C.F.R. § 1508.25 , actions that are “connected actions” under NEPA have similar “scope” and should therefore be considered in the same NEPA document. Pursuant to 40 C.F.R. § 1508.25 (a)(1),
Actions are connected if they:
(i) Automatically trigger other actions which may require environmental impact statements.
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.
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Defendants contend that the objectives of the El Portal Road are entirely separate and distinct from the objectives of the Valley Implementation Plan and the Valley Plan. Defendants argue that the goals of the Project were to stabilize the Road, reduce the likelihood of future Road closure due to floods, facilitate regional transport, 'and improve safety along the Road. In addition, the EA also contained “minimum standards for any viable alternative” such as maintaining the Road’s park-like character and constructing the Road só that buses remain to the right of the center line. 2 AR 00557.
Defendants. further argue that in contrast, the goals of both the Valley Implementation Plan and the Valley Plan relate to Yosemite Valley and the planning and operations of valley facilities. Defendants conclude that the Project has independent merit independent of any actions made in connection with the Valley Plan.
Defendants contend that the reconstruction of El Portal Road has “independent utility” and would proceed regardless of the course of the valley planning efforts. The Project is being undertaken to improve the safety of the Road and to correct problems caused by the 1997 flood. 2 AR 00537-38, 4 AR 01107. Defendants argue that the improvements are need to improve safety for existing traffic volumes and do not hinge on whether facilities are relocated in the Valley or moved out of the Valley. 2 AR 00551-55, 4 AR 01124. Defendants argue that for these reasons, the Project did not trigger the new Valley Plan and did not trigger the former Valley Implementation Plan under § 1508.25(a)(l)(i).
See Western Radio Services v. Glickman,
123 F.3d 1189 , 1195 (9th Cir.1997) (projects trigger one another if they cannot function without the other). Similarly, Defendants argue that the second prong found at § 1508.25(a)(l)(ii) of the “connected action” does not apply in this case because the Project has independent merit and does not depend on any actions that are taken with regard to facilities in Yosemite Valley.
Finally, Defendants argue that the fact that the Project may complement some of the actions that may be taken in the Valley Plan does not mean that the NPS has engaged in improper segmentation.
See Northwest Resource Information Center v. NMFS,
56 F.3d 1060 , 1067, 1069 (9th Cir.1995), quoting
Sylvester v. U.S. Army Corps,
884 F.2d 394 , 400 (9th Cir.1989) (projects that could exist without the other, but do benefit from the other’s presence, do not violate NEPA’s segmentation principles).
The court concludes that Plaintiffs have not demonstrated that Defendants acted arbitrarily or capriciously in segmenting the Road Project from related planning processes.
F. Deferring Analysis and Mitigation of Impacts
Plaintiffs contend that Defendants improperly deferred analysis and mitigation of impacts to the future. Plaintiffs rely on
Neighbors of Cuddy Mountain v. United States Forest Service,
137 F.2d 1372 , 1380 (9th Cir.1998), in which the Ninth Circuit held that “NEPA requires consideration of the potential impact of an action before the action takes place.” Plaintiffs claim that the EA and FONSI defer, developing specific mitigation measures and analysis of impacts and delegate mitigation to the contractor. Plaintiffs further claim that the NPS was also deficient in mitigating impacts on cultural resources.
In response, Defendants contend that this is a repeat of Plaintiffs’ arguments opposing the design/build method of reconstructing the Road. Defendants argue that the Supreme Court has held that NEPA does not require adoption of a complete mitigation plan to mitigate environmental
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harm before an agency can act, relying on
Robertson v. Methow Valley Citizens,
490 U.S. 332, 351-53 , 109 S.Ct. 1835 , 104 L.Ed.2d 351 . In
Robertson ,
the Court discussed the fact that while NEPA requires an EIS to contain a discussion of steps that can be taken to mitigate adverse environmental consequences, it does not contain a requirement that a complete mitigation plan be actually formulated and adopted at the time of the issuance of the EIS.
In their Reply, Plaintiffs distinguish
Robertson
on the ground that it involved an EIS, not an EA. Plaintiffs argue that once mitigation measures are thoroughly discussed in an EIS, there is no substantive requirement that the agency formulate and adopt a specific mitigation plan, so long as the ultimate decision is sufficiently explained. Plaintiffs cite
Robertson,
at 343, 109 S.Ct. 1835 as support for this proposition. The court can find no reference to the proposition on that page in
Robertson .
Plaintiffs also cite
Jones v. Gordon,
792 F.2d 821, 829 (9th Cir.1986), in which the court held that the conditions contained in a permit, rather than mitigating environmental consequences, generally operated simply to defer important agency decisions until more information has been obtained. At most, they provided only general guidelines and their effectiveness depended on how they are applied and enforced. Under these circumstances, the court held the agency’s decision not to prepare an EIS unreasonable.
In response to Plaintiffs’ complaint that some mitigation measures will be implemented and carried out during the course of construction, Defendants cite
Public Util. Com’n of State of Calif. v. F.E.R. C.,
900 F.2d 269, 282-83 (D.C.Cir.1990), in which the court held that the Federal Energy Regulatory Commission’s deferral of decision on specific mitigation steps until the start of construction, when a more detailed right-of-way for the pipeline would be known, was “both eminently reasonable and embraced in the procedures promulgated under NEPA. See 40 CFR §§ 1505.2 (c), 1505.3.” Plaintiffs do not discuss this case in their Reply.
Next, Defendants contend that Plaintiffs are wrong in claiming that the EA and FONSI delegated mitigation to the contractor. Defendants argue that the mitigation measures are binding, that the Park Service resources staff was assigned to monitor the reconstruction, and the contracting officer has authority to stop work. Defendants conclude that the NPS mitigation measures were not improperly deferred.
Although this issue is connected to Plaintiffs’ general contention that Defendants failed to adequately define the Project, Plaintiffs arguments are unconvincing in light of Defendants’ responses. The court finds that Plaintiffs have not demonstrated that Defendants acted arbitrarily or capriciously in deferring analysis and mitigation of impacts.,
G. Evaluation of Feasible Alternatives
Plaintiffs contend that Deféndants failed to adequately evaluate feasible alternatives to the Project and considered only one alternative; widening the road. Specifically,' Plaintiffs first complain that Defendants failed to consider reasonable alternatives presented by NPS’ internal documents, recommendations by experts hired by NPS and from its own staff, and many alternatives suggested during the public comment period. Second, Plaintiffs claim that in discussing the need for and alternatives appropriate for the Project, NPS failed to account for the safety improvement measures implemented in the spring of 1997, after the flood. Third, Plaintiffs claim that El Portal Road is not unsafe because while the road has a higher rate of “minor sideswipe accidents,” it has the lowest rate of major accidents
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compared to every other road in the Park. Plaintiffs argue that the “5 worst curves” on the Road were fixed as part of the Spring 1997 emergency repairs project. Fourth, Plaintiffs claim that NPS did not consider alternatives which would have prohibited oversized vehicles from using the road, although a large proportion of the accidents on the Road involve large buses, trucks and other oversized vehicles.
In response, Defendants contend that in asserting that they considered only one alternative of widening the road, “Plaintiffs completely misapprehend the EA.” Defendants argue that the EA made another alternative a major focus of the EA. This is the alternative of leaving the existing roadway unchanged .except for emergency repairs. 2 AR 559. The no action alternative was assessed in comparison with the proposed action (11 foot lanes), and a third alternative (12 foot lane with 2 foot shoulder) with respect to each environmental consequence ranging from geology to hydrology, to vegetation, to visitor use, to transportation, to visual resources. 2 AR 610-29.
Defendants argue that once an agency finds a project will not have a significant adverse environmental impact, the range of alternatives an agency must consider is narrower, and cites several cases for this proposition. In
Mt. Lookout
—Mt.
Nebo Protection Ass’n v. F.E.R.C.,
143 F.3d 165, 172 (4th Cir.1998), the court held the rigor with which an agency must consider alternatives is less when an agency determines that an EIS is not required. The court notes that 40 C.F.R. § 1508.9 (b), provides in part that an “Environmental assessment,” “Shall include brief discussions of the need for the proposal, of alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” In
Friends of the Ompompanoosuc v. F.E.R.C.,
968 F.2d 1549, 1558 (2nd Cir.1992), the court rejected an argument that commission had erred by failing to consider a specific alternative to the project. The court stated that “[i]t is well-settled that under NEPA the range of alternatives that must be discussed is a matter with an agency’s discretion,” and “the range of alternatives an agency must consider is narrower when, as here, the agency has found that a project will not have a significant environmental impact.”
Finally, Defendants state that the EA set out the minimum standards for any viable alternative, including maintaining the park like character of the route, and allowing buses to stay to the right of the center line. 2 AR 557. Defendants contend that Plaintiffs did not offer any coun-terproposal meeting those objectives in a timely manner allowing administrative consideration.
See Morongo Band of Mission Indians v. Federal Aviation Administration,
161 F.3d 569, 576 (9th Cir.1998) (the burden is on the party challenging the agency action to offer feasible alternatives). In conclusion, Defendants argue that the NPS did not commit a clear error of judgment in analyzing the three alternatives set forth in the EA, particularly given the fact that this Project was the reconstruction of an existing road.
In their Reply, Plaintiffs contend that Defendants really considered only one alternative — widening the Road. Plaintiffs argue that the two types of widening were virtually identical and that Defendants did not give careful consideration to the “no action” alternative.
The court concludes that Plaintiffs have not demonstrated that Defendants acted arbitrarily or capriciously in evaluation of feasible alternatives.. Essentially, Plaintiffs are simply dissatisfied that Defendants chose the alternative they did, rather than one of the alternatives Plaintiffs suggest.
H. Issues Raised for First Time in Litigation
Defendants contend that Plaintiffs now attempt to raise for the first time several
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issues which were never raised during the public involvement period. Defendants list as issues now raised for the first time the following: 1) from the Declaration of S. Sanders: wetlands, chemical wastes, pollutants, fisheries, Wawona riffle beetles, Bo-hart’s blue butterfly, golden and bald eagles, bats, species of special concern, and not yet listed species; 2) from the Declaration of R. Kattelman: large woody debris, habitat fragmentation, continuity of rive-rine environment, chemical releases, and transportation engineering analysis. Defendants argue that because Plaintiffs failed to explicitly or meaningfully • raise these issues during the NEPA process, this court should reject Plaintiffs’ challenge to the adequacy of the Project EA’s consideration of these issues.
Defendants rely on language from
Vermont Yankee Nuclear Power v. Natural Resources Defense Council,
in which review was sought of orders of the Atomic Energy Commission with respect to licensing of nuclear reactors. The Court of Appeals for the District of Columbia Circuit remanded the matter for further proceedings. The Supreme Court reversed, discussing at length the deference which must be accorded administrative agency decisions. The court stated in part:
“[Cjomments . must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern. The comment cannot merely state that a particular mistake was made ...; it must show why the mistake was of possible significance in the results.... ”
Portland Cement Assn. v. Ruckelshaus,
158 U.S.App.D.C. 308, 327 , 486 F.2d 375, 394 (1973), cert. denied sub nom.
Portland Cement Corp. v. Administrator,
EPA, 417 U.S. 921 , 94 S.Ct. 2628 , 41 L.Ed.2d 226 (1974).
Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that “ought to be” considered and then, after failing to do more to bring the matter to the agency’s attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters “forcefully presented.”
Id.
at 553-54 , 98 S.Ct. 1197, 1216-17 , 55 L.Ed.2d 460 .
NEPA does, set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. See 42 U.S.C. § 4332 . See also
Aberdeen & Rockfish R. Co. v. SCRAP,
422 U.S., at 319 , 95 S.Ct., at 2355 [ 45 L.Ed.2d 191 ]. It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they béen members of the decision making unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute,
Consolo v. FMC,
383 U.S. 607, 620 , 86 S.Ct. 1018, 1026 , 16 L.Ed.2d 131 (1966), not simply because the court is unhappy with the result reached. And a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below, must not be made the basis for overturning a decision properly made after an otherwise exhaustive proceeding.
Id.
at 558, 98 S.Ct. 1197, 1219 , 55 L.Ed.2d 460 .
See Greenpeace Action v. Franklin,
14 F.3d 1324, 1334 (9th Cir.1992) (“Greenpeace may not establish a scientific controversy post hoc, through the affidavits of its own scientists and the experts it has hired, when at the time of the Service’s action, there existed no substantial dispute that should have alerted the Service to the concerns that Greenpeace now raises”);
Havasupai Tribe v. Robertson,
943 F.2d
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32, 34 (9th Cir.1991) (“The Tribe had some obligation to raise these issues during the comment process. Its views were solicited. Absent exceptional circumstances, such belatedly raised issues may not form a basis for reversal of an agency decision.”);
City of Angoon v. Hodel,
803 F.2d 1016, 1022 (9th Cir.1986) (EIS did not have to address an alternative desired by Plaintiffs where Plaintiffs failed to fulfill their responsibility to structure their participation so that it was meaningful and alerted the agency to their position and contentions).
Defendants contend that in the present case, the NPS in its NEPA process for the Project provided the opportunity for significant involvement by the interested public, including Plaintiffs. Provided were a 30-day public comment period on the draft EA, which was extended by ten days; numerous open houses and walk-throughs (some of which Plaintiffs’ members attended), and continual status reports via Planning Updates and News Releases. 1 AR 00002-00102, 4 AR OHIO; Jenkins Dec. ¶¶ 9, 12-17. Defendants claim that at no time during the public involvement process did Plaintiffs voice explicit or meaningful concerns about the issues set forth above. Defendants argue, therefore, that the court should deny Plaintiffs’ contention that the EA did not adequately consider these issues.
In response, Plaintiffs contend in their Reply that the issues raised in this case were raised in the administrative process. Plaintiffs argue that Defendants played “hide the ball” with information that was relevant and pertinent to the public review process, including geotechnical date, species surveys, the Biological Assessment, the revegetation plans and the request for proposal that described the design/build process. Plaintiffs imply that it is inherently unfair to criticize them for failing to raise this issues, when Defendants hid their existence.
Plaintiffs further contend that despite Defendants’ failure to provide needed information, members of the public fully exhausted their administrative remedies. Specifically, the National Parks Conservation Association was concerned that the Project “does affect analysis of impacts to habitat ... riparian systems, vegetation; and sensitive species.” 3 AR 00678. A member of the Sierra Club raised, issues about wildlife and sensitive species. 3 AR 00684. Plaintiffs argue that while specific mention of Wawona riffle beetles, the Bo-hart’s blue butterfly, golden and bald eagles, and bats may not have been provided, the comments still put the NPS on notice to address these species, as these are the same species identified in the correspondence with the Fish and Wildlife Service. 5 AR 0214, 0215, 01222, 01233. Specific concern with spotted owls was raised. 3 AR 00686. Concern about the lack of biological surveys was raised. 3 AR 00687. Concern about Hydromantes and Bufo species as well as mountain king snakes and mountain beavers was expressed. 3 AR 00700. Concern about impacts to the river and its habitat were expressed. 3 AR 00710. Finally, the issue of air pollution, toxic chemicals and pollutants were raised, as was the need for transportation engineering analysis. 3 AR 00711, 3 AR 00712 to 714. Plaintiffs argue that all of this was sufficient to put Defendants on notice regarding the issues that are raised in this action.
The court finds that Plaintiffs are correct and that Defendants have not demonstrated that Plaintiffs are precluded from raising any issues because of failure to exhaust administrative remedies.
In summary, the court finds that Plaintiffs have demonstrated the existence of substantial questions as to whether the Project may have a significant effect on the environment. These substantial questions rest on a showing of
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substantial disagreement between experts and issues involving biological resources, including biological surveys, the revegetation plan, bat species, and trout. These substantial questions also rest on issues involving enroachment into the river and riparian habitat, and Cascade Dam. As set forth in
Sierra Club v. United States Forest Service,
843 F.2d at 1193 , in reviewing an agency’s decision not to prepare an EIS, “a determination that significant effects on .the human environment will in fact occur is not essential.”
Id.,
quoting
Foundation for North Am. Wild Sheep v. U.S. Dep’t of Agriculture,
681 F.2d 1172, 1178 (9th Cir.1982). “If substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared.” Because Plaintiffs have demonstrated the existence of such substantial questions, the court must conclude that Defendants’ decision not to prepare an EIS was arbitrary and capricious, and in violation of -the Administrative Procedures Act. The court will grant Plaintiffs summary adjudication on these issues and will issue a corresponding declaratory judgment. The issue of injunctive relief will be discussed below.
II. DEFENSES
A. Laches
1. Diligence in Bringing Action
In their counter-motion and opposition, Defendants contend that Plaintiffs’ claims are barred by laches. Defendants point out that the EA challenged by Plaintiffs was issued by the NPS on August 22,1997, yet this action was not filed until 18 months later, on February 19, 1999. Defendants also argue that Plaintiffs’. members’ frequent travel over the Road gave them the opportunity to act promptly if they felt the Project was not being implemented properly.
In the one Ninth Circuit environmental case cited by the parties in which laches was imposed, the court stated.
To demonstrate laches, a party must establish (1) lack of diligence by the party against whom the defense is asserted, and (2)
Lathan v. Brinegar,
506 F.2d 677, 692 (9th Cir.1974) (en banc) (quoting
Costello v. United States,
365 U.S. 265, 282 , 81 S.Ct. 534, 543 , 5 L.Ed.2d 551 (1961) (emphasis added)); accord
Daingerfield Island Protective Soc’y v. Lujan,
920 F.2d 32 , 37 (D.C.Cir.1990), cert. denied, 502 U.S. 809 , 112 S.Ct. 54 , 116 L.Ed.2d 31 (1991);
Portland Audubon Soc’y v. Lujan,
884 F.2d 1233, 1241 (9th Cir.1989).
In environmental cases, such as those brought under NEPA, however, it is recognized universally that these criteria must be applied in light of the principle that “[ljaches must be invoked sparingly” in suits brought to vindicate the public interest.
Preservation Coalition, Inc. v. Pierce,
667 F.2d 851, 854 (9th Cir.1982); accord
Daingerfield Island,
920 F.2d at 37; see also
Portland Audubon Soc’y,
884 F.2d at 1241 (citing the numerous circuits that have adopted this principle).
Apache Survival Coalition v. United States,
21 F.3d 895, 905-906 (9th Cir.1994).
In addition ' to the fact that the NPS issued the FONSI for the Project on August 28, 1997, the Department of Transportation awarded the reconstruction contract on June 1, 1998, and the NPS publicized the contract award July 20, 1998.. On-site surveying began September 8, 1998. Zanetell Dec., May 19, 1999, ¶2. Notice of the issuance of the FONSI and the Project’s approval by the NPS Regional Director was included in Planning Update # 8 (Summer, 1997). 1 AR 00077, Jenkins Dec., May 20, 1999, ¶¶ 12-13. The Planning Update stated, “Construction is projected to begin on December 1, 1997.” 1 AR 00078-80. Plaintiffs acknowledge that two members of the Sierra Club’s Yosemite Committee received Planning Updates on a regular
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basis. Declarations of Greg Adair ¶4 and Joyce Eden ¶3. Defendants argue that regardless of whether some of Plaintiffs’ members eventually received the revised EA and FONSI, the Planning Updates gave Plaintiffs contemporaneous notice that the Project “was ready to move forward.” 1 AR 00077.
In regard to the notice of the issuance of the FONSI and the Project’s approval by the NPS Regional Director in the Planning Update, Plaintiffs assert that no specific reference to the FONSI is included. Rather, the Planning Update states, “The environmental assessment has been completed and the final plan approved by the Regional Director. Great care has been taken to address environmental,, scenic, cultural and recreational concerns.” 1 AR 00077. The reference to “environmental assessment” is not capitalized, while the later reference to the “draft Environmental Assessment,” is capitalized. 1 AR 00079. Plaintiffs argue that only “someone sophisticated enough to know the in’s and out’s of planning documents” would understand that “the final plan approved” meant that a FONSI was released. Plaintiffs argue that there is no notice in this Planning Update that a revised EA or FONSI was released and, there was no solicitation for further comment or review.
In response to Defendants’ claim that Plaintiffs delayed for 16 months before filing the present litigation, Plaintiffs claim, without explanation, that Defendants changed the Project in later 1998. Plaintiffs further argue that the Project did not commence until September 1998, and it was not until that time that the evidence of the impact of the Project was revealed. Plaintiffs then filed suit a few months later.
Defendants also argue that additional public involvement efforts undertaken by the NPS demonstrate the unreasonableness of Plaintiffs’ claim that they did not have sufficient notice about the Project. These include four open houses about the Project held by the NPS in May and June of 1997. 1 AR 00046, 00065. Ron Mackie, one of Plaintiffs’ declarants, and one other Sierra Club member attended the open houses. 1 AR 00059-60. The NPS also hosted a walk-through of the Project corridor for agency representatives and environmental groups which two Sierra Club members attended. Jenkins Dec. ¶ 9; McKinley Dec. ¶¶ 4-5. Further, the NPS distributed Planning Updates and News Releases that summarized the scope of the Project, advised the public of the Project’s approval, and provided information on the award of the contract and the start date for construction. 1 AR 00028-46, 1 AR 00066-71,1 AR 00077-82.
Seven Sierra Club members have submitted declarations complaining that they were not given appropriate notice of the status of the Project and they did not receive various Project documents from the NPS, particularly the revised EA and FONSI. Defendants submit the declaration of Laurette Jenkins, who states that of the seven declarants, only Mr. Rasmussen, Mr. Mackie and Ms. McKinley submitted comments on the draft EA for the Project. Jenkins Dec. ¶¶ 5, 8, 16. This is the case even though Ms. Eden, Ms. El-bers and Mr. Adair admit receiving the draft EA. Adair Dec. ¶ 4; Elbers Dec. ¶ 4; Eden Dec. ¶ 3. Ms. Jenkins explains that NPS only sends final EAs and FONSIs to people who comment on draft EAs. Jenkins Dec. ¶¶ 4, 16. NEPA does not require EAs to be distributed to the public. 40 C.F.R. § 1506.6 (b).
In- response to Defendants’ arguments based on the Jenkins Declaration, Plaintiffs claim- that there is no independent verification in the Record of the statement made by Ms. Jenkins. Plaintiffs claim that the Record does not even verify that the'mailing lists Jenkins references are in fact what they claim to be. Defendants
*1237
argue that if the NPS has such an established system of notification, the Record would specifically identify the purposes of the lists, but it does not. Plaintiffs conclude that all that has been offered is the hearsay evidence of Ms. Jenkins, which they allege is disputed by several people who attempted to participate in the review process.
In specific response to the complaints raised in the Elbers Declaration, Defendants claim that Ms. Elbers did not comment on the draft EA and was only on the NEPA II list, for Planning Updates and News Releases. Jenkins Dec. ¶ 7. Defendants assert that numerous Planning Updates and News Releases provided details about the status of the Project. Jenkins Dec. ¶¶ 12-13, 15-18. Defendants argue that Ms. Elbers could have sought more information at any time by contacting the Park at the phone number provided, but she did not do so. Finally, Defendants point out that Plaintiffs fail to address in their briefs the fact that the Administrative Record contains the names of six other Sierra Club members on the NEPA I list, two of whom submitted comments on the draft EA and who were mailed copies of the revised EA and FONSI. 1 AR 00116-23; Jenkins Dec. ¶ 9. Defendants conclude that they are entitled to the assertion of laches against Plaintiffs, because Plaintiffs have failed to structure their participation in the Project so that it is meaningful, as required by
Vermont Yankee
and
Morongo Band of Mission Indians .
In their motion, Plaintiffs contend that they have diligently prosecuted this action. Plaintiffs cite
Preservation Coalition v. Pierce,
667 F.2d 851, 854 (9th Cir.1982) which described the analysis for the application of laches in environmental cases as follows:
The factors that should be considered in determining diligence in this type of case are (1) whether the party attempted to communicate its position to the agency before filing suit, (2) the nature of the agency response, and (3) the extent of actions, such as preparatory construction, that tend to motivate citizens to investigate legal bases for challenging an agency action.
Because application of laches is discretionary, the standard of review on appeal is whether the district court properly found (a) lack of diligence by the party against whom the defense is asserted, and (b) prejudice to the party asserting the defense.
Coalition for Canyon Preservation,
632. F.2d at 779, citing
Lathan v. Brinegar,
506 F.2d 677, 692 (9th Cir.1974) (en banc). To support its finding of lack of diligence, the district court determined that the last “major federal action” occurred when HUD signed the R-5 contract in 1971 and that the Coalition failed to press its claim until September 24, 1979. See
Chick v. Hills,
528 F.2d 445 (1st Cir.1976);
Sworob v. Harris,
451 F.Supp. 96 (E.D.Pa.1978), aff'd. without opinion,
Sworob v. Harris,
578 F.2d 1376 (3d Cir.1978), cert. denied,
Sworob v. Harris,
439 U.S. 1089 , 99 S.Ct. 871 , 59 L.Ed.2d 55 (1979). The passage of eight years since the BRA and HUD signed the loan and grant contract was the rock on which the district court rested its finding of lack of diligence.
We believe the district court accorded too much significance to the eight year period. The factors that should be considered in determining diligence in this type of case are (1) whether the party attempted to communicate its position to the agency before filing suit, (2) the nature of the agency response, and (3) the extent of actions, such as preparatory construction, that tend to motivate citizens to investigate legal bases for challenging an agency action.
Coalition for Canyon Preservation,
632 F.2d at
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779 (citing
City of Davis,
521 F.2d at 673).
While each of these factors cannot be fitted precisely to the facts of this case, it should be pointed out that no buildings were placed on the National Register of Historic Places until 1974, that the Eastman Building was not so placed until 1978, and that the decision to demolish the Eastman Building was not made until May 1979. Thereafter, the Coalition promptly complained to HUD about the need for an EIS before destroying an historic building. When HUD announced that no EIS was required, the Coalition immediately filed this action.
These facts clearly indicate that 1971 is not the relevant date for determining whether the Coalition’s historic preservation and funding conversion arguments in support of its NEPA claim are barred by laches. The Coalition did not know that any historic building would be demolished until May 1979. The funding conversion occurred in the same year. Moreover, before bringing suit the Coalition told the BRA it opposed the project and its suit promptly followed a public meeting on the proposed destruction of the historic buildings. These facts demonstrate the degree of diligence required by
Coalition for Canyon Preservation,
632 F.2d at 779.
Furthermore, even with respect to those aspects of the project known in 1971 that the Coalition challenges, the BRA has not shown sufficient prejudice to invoke laches. Delay may be prejudicial if substantial work has been completed before the suit was brought, but even substantial completion is sometimes insufficient to bar suit. See, e.g.,
City of Davis,
521 F.2d at 670 n. 11 (highway interchange 50% completed). Although the amount of money expended and work completed may indicate how difficult it would be to alter the plan of the project,
Coalition for Canyon Preservation,
632 F.2d at 779, increased cost from delay is alone not sufficient to establish prejudice. In enacting NEPA Congress contemplated that some delay would necessarily occur in the process of identifying potential environmental harm.
Id.
at 780; see
Ecology Center of Louisiana, Inc. v. Coleman,
515 F.2d 860, 868-69 (5th Cir.1975). Here, however, although four square blocks were leveled for the Boise project in 1971, no construction has taken place. The project cannot be considered close to completion. Cf.
City of Rochester v. United States Postal Service,
541 F.2d 967, 977 (2d Cir.1976) (EIS required for post office 35% completed). It follows that laches bars none of the Coalition’s claims.
Plaintiffs list the same items discussed by Defendants as proving that Plaintiffs had notice of the Project and argue that these demonstrate that they notified NPS of their position with regard to the El Portal Project early in the process. These include submitting comments on the Draft EA and attending site walk-throughs. Plaintiffs assert that they were on “several mailing lists in order to receive all environmental documents and notices relating to the El Portal Road project,” and in some cases made personal phone calls and special requests to Park employees to receive documents. Sierra Club Plaintiff members Adair, Cogswell, McKinley, Elbers, Eden, Makie and .Rasmussen submit declarations declaring under oath that they did not receive the Final EA. Plaintiffs argue that Defendants offer no evidence that Plaintiffs actually received or had notice of the availability of those documents.
Plaintiffs contend, relying on the Eden Declaration that once construction began and they became aware of the significant impacts involved in the Project, they sent Freedom of Information Act requests to the NPS to acquire any environmental or mitigation documents for the Project, be
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gan searching for an attorney, to investigate their legal options, staged protests and began letter writing campaigns to halt the Project.
Plaintiffs contend that “[although the legal basis for plaintiffs’ claims may have become available upon issuance of the final mitigated FONSI, the need for this litigation came from plaintiffs’ first realization of the massive destruction being perpetrated on the protected Merced River corridor by the National Park Service, evidenced by the actual construction.” Declarations of Adair, Cogswell, McKinley, Mackie, El-bers, Eden, and Rasmussen. Plaintiffs claim that the EA does not include any detailed mapping of the project and does not adequately analyze the exact nature and extent of impacts. Plaintiffs argue that they were entitled to assume the NPS had complied with NEPA and cannot be expected to challenge every project which in some way violates the law. Plaintiffs assert that they are non-profit, volunteer-based organizations1 which must use their sparse resources efficiently to challenge the most egregious projects proposed by the federal government.
Plaintiffs contend that the present case is distinguishable on the facts from
Apache Survival Coalition v. United States,
21 F.3d 895 (9th Cir.1994), the apparently single énvironmental case in which the Ninth Circuit upheld the imposition of laches. In
Apache Survival Coalition ,
a tribal coalition challenged the issuance of the permit for implementation of the first phase of construction of an astrophysical complex on an Arizona mountain. When the Tribe’s input was solicited concerning the mountain and its cultural resources, the Tribe’s only response was to seek assurances that its property rights would be protected. The Ninth Circuit further explained the facts justifying the application of laches as follows:
In this case, the Tribe (and thus members of the Coalition) had been informed in the mid-1980s that telescopes might be constructed on Mount Graham and yet purposefully shunned the NHPA process. Moreover, the Tribe did not bring suit until more than two years after the issuance of the special use permit. Finally, although the Tribe in- • formed the Forest Service briefly and in general terms that it had objections to the issuance of the permit prior to filing suit, it ignored the Forest Service’s prompt expression of its willingness to listen to the Tribe’s concern’s and proposals. The members of the Tribe then delayed filing.for well over a year, and, all the while, construction of the facilities on Mount Graham proceeded apace.
Id.
at 909 . Plaintiffs argue that in contrast, they have “kept a watchful eye” and have participated in all planning processes, but did not have the information necessary with respect to the El Portal Project to decide whether it was advisable to expend legal resources on litigation.
Defendants contend that another avenue through which information about the Project was available was the media. Defendants argue that newspaper coverage of the Project was extensive in Mariposa and the Central Valley. Jenkins Dec. ¶¶20-21. Several articles prominently featured this court’s September 30, 1998 decision to deny Mariposa County’s request to preliminarily enjoin.the Project. Jenkins Dec. ¶¶21. Defendants assert that they “are unaware of any case in which a plaintiff has stood by after someone else unsuccessfully sought to challenge the same environmental document under the same law.” Defendants argue that “[h]ad the plaintiffs been paying attention (particularly MERG’s local residents), these articles and the hews about the Mariposa County case should have prompted more decisive and timely action.”
Centering in on Plaintiff MERG, Defendants contend that MERG seems to have
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acted in the same manner as the plaintiffs in
Apache.
MERG did not submit comments on the draft EA. # AR 00672-00954. Defendants assert that MERG’s only action to effect change in the manner that the Project was proceeding was to protest with the Sierra Club after construction had begun. Mackie Dec. ¶ 6. Defendants argue, however, that the numerous News Releases, Planning Updates, and media stories discussed above put MERG on notice about the Project more than twenty months before MERG took any action to protect its legal rights.
Defendants argue that MERG’s inaction is even more egregious when Plaintiffs’ own admissions' are considered. Plaintiffs’ First Amended Complaint states that MERG’S members, who live in and around Mariposa County, use the Park on a “regular basis” and that they “regularly use the El Portal Road.” First Amended Complaint, ¶ 16. Ron Mackie, a MERG member, states that he drives the El Portal Road on a “weekly” basis. Mackie Dec. ¶ 4. Defendants argue that based on these admissions, Plaintiffs’ statements that they were unaware of the Project’s approvals, or the nature of the impacts, defy logic. Defendants argue that like in
Apache,
this case exemplifies a situation where the agency “was attempting to follow the applicable procedures by notifying and seeking input from all possibly interested parties. While the process moved forward, the members of [MERG] remained virtually silent.”
Apache,
21 F.3d at 908 . Thus, MERG “ignored the very process that its members now contend was inadequate.”
Id.
at 907 .
In response, Plaintiffs cont

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2348595. Public record. Not legal advice.