Petition for Writ of Certiorari — Wetlands Action Network v. United States Army Corps of Engineers
Supreme Court brief2001
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.S.
(1) FILED
001692 MAY 102001
No. Pilalaalealidialaileils
IN THE
Supreme Court of the United States
WETLANDS ACTION NETWORK, et al.,
Petitioners,
Vv.
U.S. ARMY CORPS OF ENGINEERS, et ai.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI -
Bruce J. Terris*
(*Counsel of Record)
Kevin O. Leske
TERRIS, PRAVLIK &
MILLIAN, LLP
1121 12th Street, N.W.
Washington, D.C. 20005
(202) 682-2100
Counsel for Petitioners
Wetlands Action Network and
California Public Interest
Research Group
WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001
ot
QUESTION PRESENTED
Whether the decision of the court of appeals upholding the
Corps of Engineers’ decision not to prepare an Environmental
Impact Statement under the National Environmental Policy Act
was erroneous because the court of appeals determined,
contrary to decisions of this Court and other circuits, that the
Corps did not need to consider, in making this determination,
significant environmental impacts that will be caused by
portions of the same project which are outside the Corps’
regulatory jurisdiction.
PARTIES TO THE PROCEEDING
Petitioners are Wetlands Action Network, a California
non-profit corporation; and California Public Interest Research
Group, a California non-profit corporation. Neither corporation
has a parent or publicly held company owning 10% or more of
the corporation’s stock.
Ballona Wetlands Land Trust, a California non-profit
corporation, was also a plaintiff in the proceedings below. It
does not have a parent or publicly held company owning 10%
or more of the corporation’s stock.
Respondents are the United States Army Corps of
Engineers, an agency of the United States; Lt. General Joe N.
Ballard, in his capacity as Chief Engineer of the United States
Army Corps of Engineers; Col. Michal R. Robinson, in his
capacity as District Engineer of the United States Corps of
Engineers; and Playa Capital Company, L.L.C.
TABLE OF CONTENTS
Page
QUES TIN PREGGN GED 6 6 8S EBT eis cebu i
PARTIES TO THE PROCEEDINGS ................. ii
POE CU CHE ETE 8 cc ecccccccdcbucisstsie iv
PIE os cans ddGibie cp dene biahe dee gcet l
See oN 5 4 cag hlh bees eRedvden ]
IED nos 5 i a'd'n u nai alan’ 's 6 Sea's 6 obese l
STATEMENT OF THE CASE .......ccccccscccccces 2
REASONS FOR GRANTING THE PETITION ......... 9
EY a Oh at das has dee nk se oune nec sanas 28
APPENDIX
JUDGMENT AND DECISIONS BELOW ........ la
RELEVANT REGULATIONS OF THE COUNCIL
ON ENVIRONMENTAL QUALITY ........... 93a
iV
TABLE OF AUTHORITIES
Cases Page
Airport Neighbors Alliance v. United States,
me fy if. fe | rrr 1]
Andrus v. Sierra Club, 442 U.S. 347 (1979) ...... Peg 27
C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569
4) 48 | Bp errr Pe yer 10, 11
Conservation Law Foundation v. Federal Hwy. Admin.,
BO PSE UGGS IG. TOD onc ccc ciscscnivcncns 28
Marsh v. Oregon Natural Resources Council,
SOT Bee Ce nc bawchacsetvcccsevenndawsre 9
National Audubon Society v. Hoffman,
beg me ger fk eo) rere Cree 10, 11
Park County Resource Council, Inc. v. United States
Dept. of Agriculture, 817 F.2d 609 (10th Cir. 1987). .. 28
Robertson v. Methow Valley Citizens Council,
Ge Ghee EE ks bud che cuwacecdene 9:2), deat
Save Our Ten Acres v. Kreger, 472 F.2d 463
Pe SNE a cietuceeesare kb ck ks ineouee 10
Save The Yaak Committee v. Block,
i bt, f > eR , | rena gy 17
Sierra Club v. Epsy, 38 F.3d 792
Le A, er orcs i tuta ata mue es 11
Sierra Club v. Froehlke, 534 F.2d 1289
| ERS Sinn oe re Pantene ee eragerarr 28
Sierra Club v. Lujan, 949 F.2d 362 (10th Cir. 1991) ... 28
Sierra Club v. Marsh, 769 F.2d 868
SR POE oo ecw aciads nuh ved aw ewer ys ae i Be 9 |
Sierra Club v. U.S. Forest Service,
G6 F.36 S30 Coe GO, BGG) nv ewe ccdccctonnces 23, 24
Society Hill Towers Owners' Association v. Rendell,
ra wR kk ee re ae 10, 24, 25
Vv
Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) .. 17,18
Vieux Carre Prop. Owners, Res. v. Pierce,
FED © ae Aas CO MONEE 6 bn co as aA 25
Wetlands Action Network v. U.S. Army Corps
of Engineers, 222 F.3d 1105 (9th Cir. 2000) ..... passim
Wetlands Action Network v. U.S. Army Corps of Engineers,
CV 96-8407, June 26, 1998 (C.D. Calif.) ....... passim
Statutes
po SF oie | | Seemann ies mene rmag ARO Si Pie Hs l
Pen BAPE 605555400550 EA 8
DP Wi Milin BE n don baksdnek kaka ae et 3
OE SPO OEE ov kas casyeses sv ead beet IL et l
Cl Cie CHRMUED so vk hha hod oho 9,10, 11,17
Regulations
So es TIDE 66.05 £44055 Osh 28
EG EE ob 0 ise ik skeleton 28
a oe. 4 Peery peep onic Pcie rae 11
RR EE 64.5 fos hp cede Ge ea ee 28
PE | Sa rea em al Rtn et: 28
sade fi on, BED UT COPE OTOP ees 2
eS aes RD ci pods chads acineele tn 9
PG ee SOE kis avisccdadae celeiees oe 10, 11
i, 3 RP Per Pe seen re 21
gk & gare ie erg pe x IY 24, 26
Ce RE bos skh kd shai see 26
SER Es phn sbie ie edeoeeke ee 10
DE COD in 6555 ok nkoncs i eee 11
a at f Re - REPRE Ee Ne Pee SSE ool 26
CEG as SELES ode cea eee 26, 27
Er es PIN sik tics ho bce eo a 10
PETITION FOR A WRIT OF CERTIORARI
Wetlands Action Network and California Public Interest
Research Group respectfully petition for a writ of certiorari to
review the judgment of the United States Court of Appeals for
the Ninth Circuit.
OPINIONS BELOW
The opinion of the court of appeals is published at 222
F.3d 1105 (9th Cir. 2000) and is reprinted in the Appendix
("App.") at la. The decision of the district court, which is
unpublished, is reprinted in the Appendix at 39a.
JURISDICTION
The judgment of the court of appeals was entered on
August 21, 2000 (App. la). The petition for rehearing and
rehearing en banc was denied on January 10, 2001 (App. 38a).
The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
On March 30, 2001, Justice O'Connor extended the time
within which to file a petition for a writ of certiorari to and
including May 10, 2001.
STATUTES INVOLVED
The relevant section of the National Environmental Policy
Act ("NEPA"), 42 U.S.C. 4321 et seq., is as follows:
Section 4322.
The Congress authorizes and directs that, to the fullest
extent possible:
**++*
(2) all agencies of the Federal Government shall-
2
***
(C) include in every recommendation or report on
proposals for legislation and other major Federal
actions significantly affecting the quality of the human
environment, a detaiic2 statement by the responsible
official on -
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between_local short-term uses of
man’s environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.
The relevant regulations of the Council on Environmental
Quality, 40 C.F.R. 1500 ef seq., are set forth in the Appendix
at 93a.
STATEMENT OF THE CASE
The Ballona wetlands ecosystem is one of only a few
significant wetlands that remain on the southern California
coastline and contains one of the last major coastal wetland
areas in Los Angeles County. 2 AR 722’ The Ballona
wetlands offer one of the last prime opportunities for coastal
salt marsh restoration in southern California. 6 AR 2919.
The Playa Vista development (“Project”) is one of the
~All references to the Administrative Record are designated as“_ AR __
3
largest commercial and residential developments ever
undertaken in the City of Los Angeles. The developer, Maguire
Thomas Partners-Playa Vista, LLC (“MTP-PV ”),”’ plans to
construct a mixed-use development covering over 1000 acres
that will include residential areas, a marina, hotels, retail
establishments, and an entertainment media and technology
district. 8 AR.3726. The Playa Vista property is the largest
parcel of undeveloped land still remaining in the heavily
urbanized western portion of Los Angeles County. 8 AR 3750.
For planning purposes, the project was divided into four
parcels (Areas A, B, C, and D). 8 AR 3726. These parcels are
divided on their easterly-westerly axis by the Ballona Creek and
by Lincoln Boulevard on their northerly-southerly axis. /bid.
MTP-PYV intends to build the project in three phases. 8 AR
3728. This massive project depends, to a significant extent, on
the filling of coastal wetlands in Phase I for the purpose of
constructing a drainage and detention system for storm water
control and for flood protection for upland areas. The system
would also serve as mitigation for the impacts on wetlands in
other areas of the project. 8 AR 3729.
Phase T of the project involves the development of
approximately 5,000,000 square feet of office space, 10,000
residential units, 1,000 hotel rooms and 600,000 square feet of
retail space. 6 AR 2966. In August 1990, MTP-PV applied to
the United States Army Corps of Engineers (“Corps”) for a
permit under Section 404 of the Clean Water Act, 33 U.S.C.
1344. MTP-PV applied to the Corps for a permit for Phase I in
“Playa Capital Company, L.L.C. is the successor-in-interest to MTP-PV,
and is the owner of the property upon which the Playa Vista project is
proposed. For the purposes of this petition, petitioners will refer to the
developer as MTP-PV because that is how the developer is referred to in the
decisions below.
4
order to (1) fill approximately 8 acres of wetlands in Area B
and approximately 8 acres of scattered wetlands within Areas
B, C and D, which would result in the combined destruction of
approximately 16 acres of wetlands; and (2) build a proposed
51.1 acre pollution run-off and detention system” as mitigation
for the 28.1 acres of wetlands that would be filled during all
phases of the project. 8 AR 3728-3729. Separate applications
were to be made to the Corps for permits to fill wetlands in
each of the following two phases. 8 AR 3728.
The 16 acres of wetlands that MTP-PV intends to fill in
Phase I are coastal wetlands or salt water marshes. 1 AR 11; 2
AR 946; 6 AR 2937. MTP-PV intends to fill these coastal
wetlands for two reasons: (1) the 8 acres of scattered wetlands
in Areas B, C, and D would be filled to “accommodate” the
mixed-use development (8 AR 3728); and (2) the 8 acres of
wetlands in Area B would be filled in order to create a berm
between the 51.1 acre pollution detention basin along Lincoln
Boulevard, which is proposed in Phase |, and a salt water marsh
extension, which is proposed in Phase II (8 AR 3729). The
proposed pollution run-off and detention system in Phase | is
designed for the purpose of collecting runoff from the new
urban development inland of the existing tidal wetland. 8 AR
3728. Polluted storm water and urban runoff from the
development and surrounding areas will be directed into the
pollution detention basin through a new drainage channel that
will be dug across the site. 8 AR 3730. The currently existing
channel, which now contains functional wetlands, would be
~In the administrative record and during the course of this litigation, many
terms have been used to refer to this proposed system, including: “retention
basin”; “sump”; “freshwater marsh system”; “freshwater riparian system”;
“freshwater mitigation system.” For consistency, petitioners will refer to
the entire system as the “pollution run-off and detention system” and the
detention basin as the “pollution detention basin.”
¢
5
completely destroyed. 6 AR 2703; 8 AR 3728.
In Phase II of the Project, MTP-PV plans to create a 230-
acre salt marsh system. 8 AR 3728. In order to do this, 160
acres of delineated wetlands, as well as upland areas, would be
converted into a salt marsh system. 4 AR 1717. MTP-PV must
obtain a permit from the Corps for this work.
Phase III requires the submission of a third permit
application to the Corps. This phase proposes development of
a marina in Area A, associated commercial and residential
development, and possibly improvements to the Ballona
Channel. 8 AR 3728. The plans for Phase III require the filling
of 9.8 acres of wetlands in Area A. 2 AR 1718.%
The wetlands involved in this case are of particular
importance. The existing Ballone marsh ecosystem is an
extremely scarce habitat in southern California because most
coastal marshlands areas along the coast were destroyed long
ago by urban development. Zedler Dec., paras. 2, 5; Mattoni
Dec., para. 11. Coastal salt marsh is an endangered ecosystem
in California. Zedler Dec., para. 2; 2 AR 722. Over 90% of
the State’s historic wetland areas have been destroyed. Zedler
Dec., para. 3. Most of California’s remaining coastal wetland
habitat is in the northern half of the State. /bid. Most of the
remaining coastal wetland habitat is impaired, either through
reduced tidal flushing, lowered water quality, and/or modified
streamflows. Ibid.
Loss of habitat, including coastal salt marsh, is the leading
cause of endangerment to species. Zedler Dec., para. 4. The
loss of 90% of California’s wetlands have reduced bird, fish,
“During the course of this litigation, the Corps decided that an EIS will be
required for Phases II and III together.
6
invertebrate, and plant populations. /bid. The threatened and
endangered status of several species that depend on coastal
wetland habitats can be attributed to both lost habitat and
reduced habitat quality. /bid. The Ballona wetlands that MTP-
PV seeks to destroy support over 100 species of birds,
including the endangered California Least Tern, the endangered
Southwestern Willow Flycatcher and the state-endangered
Belding’s Savannah Sparrow. 6 AR 2621; | AR 11; Hanscom
Dec., para. 3. There is an urgent need to restore tidally-
influenced wetland habitat, rather than to destroy it, due to its
importance in providing critical habitat. Zedler Dec., paras. 4-
5. See 6 AR 2937; 1 AR 11; 2 AR 946.
While the Ballona wetlands are admittedly degraded (8 AR
3731), they can be successfully restored. Zedler Dec., para. 7.
See 6 AR 2937; 6 AR 2919. Few of the remaining coastal
wetlands in southern California present opportunities for
expanding salt marsh azea, which is typically accomplished
either through restoring former wetlands or by excavating
disturbed uplands and expanding the tidal influence. Zedler
Dec., para 5. The Ballona wetlands presents both types of
restoration opportunities. /bid. It has areas with greatly
reduced tidal flow that could be restored by increasing tidal
influence and it has disturbed uplands that could be excavated
and connected to tidal channels. /bid. Moreover, the Ballona
wetlands present an exceptional restoration opportunity because
most wetlands in California are surrounded by permanent
structures, such as buildings or other development. /bid. The
Ballona wetlands are an exception. /bid.
Once the pollution run-off and detention system is |
constructed where the salt water marshes now exist, the future |
possibility of salt marsh restoration in this area will be |
permanently foreclosed. Zedler Dec., para 7; 7 AR 3365-3366;
6 AR 2937; 4 AR 1768. In addition, the construction of this
eM
7
freshwater pollution run-off and detention system immediately
adjacent to the remaining salt water wetlands will have serious
detrimental impacts to these salt water wetlands. Zedler Dec.,
para. 7. Exotic plants (including non-indigenous weeds) from
the new freshwater pollution run-off and detention system will
likely establish themselves in the salt water wetlands and
provide anearby source of seeds for further invasion into these
remaining salt marshes. /d., para. 8. Urban run-off that wiil
flow into the pollution run-off and detention system will likely
allow contaminants to accumulate and enter the wetland food
web and may alter ground water salinity that would encourage
a non-indigenous plant invasion. /bid.
MTP-PV proposed the pollution run-off and detention
system as mitigation for the wetlands that will be destroyed
during the entire project and has called it a freshwater wetland
system. The pollution run-off and detention system proposed
by MTP-PV does not mitigate the loss of the invaluable salt
water wetlands. See 3 AR 1569-1570; 4 AR 1813-1815;4 AR
1768; 4 AR 1792; 8 AR 3683. It is questionable whether the
pollution detention system can even be referred to as a “marsh”
or a “freshwater wetland.” Mattoni Dec., para. 8; 6 AR 2937-
2938. The system would be nothing more than a “storm drain
and waste water disposal” device. /bid.; 7 AR 3110. It was
designed as a drainage and filtration plant for effluent and
storm water, which will be created by the Playa Vista
development, as well as other upstream urban development
across its drainage area. Mattoni Dec., para. 8. It will be, in
effect, a shallow lake with a surrounding weed patch that will
be “unlikely to provide significant wildlife habitat values.”
Ibid. The “marsh” will promote at least 20 species of invasive
non-native Mediterranean weeds and such noxious animal pests
as Argentine ants, European earwigs and sowbugs. /bid. These
non-native species will preempt substantial habitat for native
species that a true marsh is supposed to encourage. /bid.
On July 1, 1992, the Corps issued the permit for Phase I
along with an Environmental Assessment (“EA”) and a Finding
of No Significant Impact (“FONSI”). 8 AR 3725. On
December 3, 1996, petitioner Wetlands Action Network,” as
well as the Ballona Wetlands Land Trust, brought suit in the
United States District Court for the Central District of
California, challenging the Corps’ determination to issue the
permit and not to prepare an environmental impact statement
(“EIS”). The action alleged violations of the National
Environmental Policy Act and the Clean Water Act.
Jurisdiction was invoked under 28 U.S.C. 1331.
The EA prepared by the Corps discussed the environmental
impacts of the entire project. 8 AR 3725-3780. The EA stated
that an EIS did not need to be prepared because “the fill
proposed for 16 acres of degraded wetlands and U.S. waters for
this immediate permit, and the nature of the proposed 51 acre
freshwater wetland mitigation does not have sufficient impacts
to warrant the preparation of an EIS.” 8 AR 3769. The Corps
did not consider the environmental impact or harm from any
other portions of the project other than the filling of the wetland
areas in determining not to prepare an EIS.
On June 26, 1998, the district court granted petitioners’
motion for summary judgment. The court held that the
decision by the Corps not to prepare an EIS was erroneous
because the Corps did not analyze the entire project as
functionally interdependent. App. 65a. The court found that
“the fill of the wetlands as provided for under the Permit and
the overall development on the Playa Vista property are
inextricably intertwined, and are ‘connected actions,’ under
applicable regulations.” App. 65a. As a result, the court
~Petitioner California Public Interest Research Group joined the action in
an amended complaint filed on February 19, 1997.
9
ordered the Corps to rescind the permit for the filling of the
16.1 acres of wetlands and enjoined MTP-PV’s construction
activities relating to the 16.1 acres of wetlands. App. 92a.
On August 21, 2000, the Court of Appeals for the Ninth
Circuit reversed. It held that the Corps did not need to consider
the environmental harm caused by any portions of the
development not within the regulatory jurisdiction of the Corps
in determining whether to prepare an EIS. App. 24a. On
January 10, 2001, the court of appeals denied a petition for
rehearing and for rehearing en banc. App. 39a.
REASONS FOR GRANTING THE PETITION
Statutory Background. NEPA requires a federal agency to
prepare an EIS for “all major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C.
4332(2)(C). The regulations of the Council on Environmental
Quality state that NEPA “is our basic national charter for
protection of the environment.” 40 C.F.R. 1500.1(a). As this
Court has found, NEPA emphasizes the importance of coherent
and comprehensive up-front environmental analysis to ensure
informed decision making so that “the agency will not act on
incomplete information, only to regret its decision after it is too
late to correct.” Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 371 (1989). NEPA’s goals are “realized through
a set of ‘action-forcing’ procedures” and require agencies to
take a ‘hard look’ at the environmental consequences of their
actions. Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989).
It is well settled that when “the determination that a
significant impact will or will not result from the proposed
action is a close call, an EIS should be prepared.” National
Audubon Soc'y v. Hoffman, 132 F.3d 7, 13 (2d Cir. 1997). See
10
Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (Sth Cir.
1973). Moreover, a party challenging an agency’s decision not
to prepare an EIS must show “only that there is a substantial
possibility that the action may have a significant impact on the
environment, not that it clearly will have such an impact.”
National Audubon Soc’y v. Hoffman, supra, 132 F.3d at 18.
The Council on Environmental Quality (“CEQ”) has issued
regulations to address whether an agency must prepare an EIS
(40 C.F.R. 1501.4):
In determining whether to prepare an environmental
impact statement the Federal agency shall:
* * *
(c) Based on the environmental assessment make its
determination whether to prepare an environmental
impact statement.
* * *
(e) Prepare a finding of no significant impact (§
1508.13), if the agency determines on the basis of the
environmental assessment not to prepare a statement.
See Society Hill Towers Owners’ Assn. v. Rendell, 210 F.3d
168, 174 (3rd Cir. 2000) (the “impact of a project upon the
human environment is first assessed by preparation of an
Environmental Assessment”); C.A.R.E. Now, Inc. v. FAA, 844
F.2d 1569, 1572 (11th Cir. 1988) (the EA “‘is an authorized tool
for determining the extent of the environmental impacts”).
If the EA demonstrates that the proposed action may have
a significant impact, the agency must prepare an EIS. 42
U.S.C. 4332(2)(C); 40 C.F.R. 1508.9; C.A.R.E. Now, Inc. v.
F.A.A., supra, 844 F.2d at 1572; National Audubon Soc’y v.
Hoffman, supra, 132 F.3d at 12. On the other hand, if after
preparing the EA, the agency determines that the proposed
11
action will not have any significant impacts, it can issue a
Finding of No Significant Impact and forgo an EIS. 40 C.F.R
5101.4; 40 C.F.R. 1508.13; Airport Neighbors Alliance v.
United States, 90 F.3d 426, 429 (10th Cir. 1996); National
Audubon Soc’y v. Hoffman, supra, 132 F.3d at 12; Sierra Club
v. Epsy, 38 F.3d 792, 796 (Sth Cir. 1994),
The Environmental Assessment. The Corps prepared an
EA in this case for the purpose of determining whether to
prepare an EIS. 33 C.F.R. 230.10; 8 AR 3726. The EA first
described the entire project and then described the activity to be
carried out under the proposed permit. 8 AR 3728. The Corps
recognized that the primary “purpose and need” for Phase I was
both “to construct a mixed-use development” and “to provide
mitigation for wetland impacts that will result from this and
future Playa Vista projects.” 8 AR 3730.
The Corps analyzed in the EA the impacts of the entire
project and not just the filling of the wetlands.
First, the EA discussed changes in current, circulation or
drainage patterns of the project. 8 AR 3735. The Corps found
that “[o]verall, the whole project will result in an increase in
impervious surfaces,” which will result in a loss of groundwater
recharge. /bid. It noted that “[e]xisting waters of the U.S. and
wetlands will be eliminated and new drainages and wetland
areas will be created.” /bid.
Second, the EA examined the flood control effects of the
entire project. 8 AR 3736. It expressed concern that “{i]f flood
flows into the freshwater marsh exceed a one year event, excess
fresh water will spill over the berm into the proposed [Phase II]
salt marsh area.” /bid.
Third, the EA addressed the impacts on aquifer recharge
12
from the project as a whole. 8 AR 3737. It stated that “the
increase in impervious surfaces that will result from the
construction of the mixed-use development will reduce the
natural recharge of the aquifer that occurs under present
conditions.” /bid. The total site acreages with 100 percent
impervious surfaces in the project would be increased from 443
to 870 acres. /bid.
Fourth, the EA dealt with the effects of the entire project
on habitat for fish and other aquatic organisms. 8 AR 3737-
3740. The EA found that the total impacts to wetlands will
approach 28 acres and that there would be a potential loss of
amphibians and reptiles inhabiting the site. /bid.
Fifth, the EA analyzed the effects of the entire project on
the habitat for wildlife. It noted that there would be a “large
loss of open space.” 8 AR 3740. It also stated that the filling
of the-wetlands will result in a loss of eight acres of foraging
habitat for grassland adapted bird species and loss of willow
scrub habitat at the base of the Playa del Rey bluffs. /bid.
Sixth, the EA set forth the harm to endangered and
threatened species from the entire project. For example, it
recognized that there might be “impacts to the Belding’s
Savannah Sparrow in Area A as a result of future phases of the
Playa Vista project.” 8 AR 3740.
Seventh, the EA analyzed the effect of the entire project on
human use, including aesthetics, traffic, energy consumption,
air quality and transportation. 8 AR 3742-3750. The most
obvious impact was that the project would change the area from
open space to a more urban environment and the “aesthetic
changes will therefore be substantial.” 8 AR 3743. The EA
found that the project would generate increased traffic, would
increase the demand for energy, and would bring thousands of
13
more people into the area. /bid.
The EA included a three-page “Summary of secondary and
cumulative effects.” 8 AR 3750-3753. The EA recognized that
the cumulative impacts of the project represent the loss of
much of “the largest remaining open space within coastal West
Los Angeles” and that the project would “replace
approximately 484 acres of undeveloped open space with urban
development.” 8 AR 3750. The EA stated that the loss of this
upland habitat is a “substantial impact which would be partially
compensated for by the restoration and creation of sensitive
habitat types” as part of the project. /bid. It also found that, in
addition to the loss of the upland habitat, the entire project
would result in the loss of 17.9 acres of scattered wetlands and
6.2 acres of contiguous wetlands. /bid. Furthermore, of 200
acres of native plant communities found in the entire project
area, 38% would be destroyed and “there will be a fundamental
change in the nature of these native habitats.” /bid.
The EA also noted that the Burrowing Owls, a California
Species of Special Concern, could lose habitat and might lose
potential foraging habitat from the loss of upland habitat. 8 AR
3751. The EA concluded that “[I]oss of burrowing owl habitat
could be a significant cumulative impact.” /bid. The Belding’s
Savannah Sparrow, a State of California endangered species
and a Federal Candidate 2 species, would also “lose winter
foraging habitat and potential nesting habitat from the fill of
pickleweed wetlands in Area A.” Jbid. The EA stated that
“there could be significant negative impacts” for the Salt Marsh
Skipper (Federal Candidate 2 butterfly species) and the
Southern California Salt Marsh Shrew (a State of California
Species of Special Concern and a Federal Candidate species) if
habitat for these species were flooded or destroyed during the
restoration process of the salt marsh in Phase II. Jbid. Finally,
the EA noted that the California Least Tern, which is listed as
i4
an endangered species by both California and the federal
government, “could be significantly impacted in the short-term
if turbidity and disturbance during construction prevented
foraging in the area during the breeding season.” 8 AR 3752.
The EA also contained a summary of the comments the
Corps had received after it had released the public notice that
MTP-PV’s permit application was complete. 8 AR 3753. The
United States Environmental Protection Agency (EPA), United
States Fish and Wildlife Service (USFWS) and National
Marine Fisheries Service (NMFS) expressed serious concerns
with the project. 8 AR 27754. EPA recommended that the
NEPA document to be prepared by the Corps “should include
a comprehensive cumulative analysis of impacts attributable to
reasonably foreseeable future actions proposed at the same
locale,” including “potential non-federal actions proposed for
the same geographic area.” 4 AR 1815. After the Corps sent
EPA a Notice of Intent (NOI) that it was going to issue the
permit, EPA stated that it believed that “the three phases are
clearly linked” and “the cumulative impacts of the entire
project must be considered” before it could agree to permitting
the initial phase. 8 AR 3469. USFWS similarly stated that an
EIS appeared warranted and recommended that, at that time,
the “no project alternative [should] be adopted due to the
significant impacts to public fish and wildlife resources,
including Federal listed endangered species.” 2 AR 723.
NMFS noted that “the applicant has consistently stressed the
interconnection of the various parts of its overall project” and
that given this approach, it was inappropriate for MTP-PV to
piecemeal the permitting process by submitting three separate
permit applications. 4 AR 1776. Furthermore, it recommended
that given the magnitude of the project, the Corps should
“reassess the determination [in the public notice] that an
Environmental Impact Statement is not required.” /bid.
15
Even though the EA analyzed the harm from the entire
project, the Corps gave no consideration to the environmental
impact from any portion of the project, except for the filling of
the wetlands, in determining whether to issue an environmental
impact statement. The Corps said that the decision on whether
or not to prepare an EIS “in this case need not include
substantial consideration of the development in the uplands
because development could occur in those areas regardless of
whether this permit application is granted.” 8 AR 3369. The
Corps based its issuance of a Finding of No Significant Impact
“on information provided by the applicant, all interested
parties, and [its] assessment of environmental impacts
contained in part II B of this document.” 8 AR 3789. Part II B
is a 5-page section that primarily contained an analysis of the
alternatives to the filling of the wetlands in Phase I (8 AR
3731-3735), and not any of the impacts analyzed in the other 55
pages of the EA. The Corps concluded that “the fill proposed
for 16 acres of degraded wetlands and U.S. waters for this
immediate permit, and the nature of the proposed 51 acre
freshwater wetland mitigation does not have sufficient impacts
to warrant the preparation of an EIS.” 8 AR 3769. The
impacts from the other portions of the project were therefore
not considered. In other words, the Corps discussed the
impacts from the entire project in the EA but then ignored all
of these impacts except those from filling the wetlands in
concluding not to prepare an EIS.
The Corps admitted in the EA that “even though the parts
[of the project] are distinct, they are not totally independent.”
8 AR 3768. Based on this determination, the Corps found that
mitigation in Phase I could be credited to future phases “up
front and in advance off] their authorization, provided the
success criteria are met for the proposed freshwater wetland
complex.” Jbid. The U.S. Fish and Wildlife Service
questioned the appropriateness and legality of allowing this
16
mitigation for future phases. 8 AR 3780. Nonetheless, the
Corps found that it would grant mitigation credit, even though
it did not find a “strong enough link through NEPA to require
that these projects be combined.” 8 AR 3869. Thus, the Corps
considered the entire project when it decided whether to certify
the “wetlands system” (the pollution run-off and detention
system) as mitigation for the filling of wetlands, but considered
only the filling of the wetland portions when analyzing whether
the project had significant effects.
The Decisions Below. The district court held that “the
Corps should have analyzed the entire project as functionally
interdependent” because the “fill of the wetlands as provided
for under the Permit and the overall development on the Playa
Vista property are inextricably intertwined, and are ‘connected
actions,’ under applicable regulations.” App. 65a. It found that
“the developer’s interest in the overall development hinges on
the development of the wetlands portion.” App. 64a.
The district court further found that the “fill of the
wetlands and the creation of the 51.1 acre system does not have
‘independent utility’ such that Defendants would reasonably
consider constructing it in isolation.” App. 65a. It concluded
that “the mixed-use development project and the freshwater
system are ‘links in the same bit of chain’ ” that “should have
been considered together by the Corps in determining the
environmental impact.” App. 64a. The district court reasoned
that the “mixed-use development could not proceed in the
manner it was planned without the filling of the wetlands as
authorized under the permit.” App. 64a. Furthermore, it stated
that (App. 64a-65a):
The EA specifically rejected the “no-action”
alternative because to do so would “eliminate crucial
linkages in the applicant’s proposed local street grid
17
system, compromising the achievement of the
applicant’s planning objective of a traditional town
model as an alternative to suburban development and
its dependence on automobile use.” Further, the
wetland fill would not be justified in the absence of
the mixed-use development. Defendant’s assertion
that the subject-of the-permit action has independent
utility and that it will proceed to construction and see
a functional purpose regardless of the outcome of the
remaining project phases is disingenuous. (internal
citations omitted)
The district court also found that the fill of the wetlands and the
overall development should have been considered as
“cumulative actions,” which it defined as “actions which when
viewed with other proposed actions have cumulatively
significant impacts.” App. 66a.
Based on these findings, the district court concluded that
the Corps was required to consider the environmental harm for
the entire project in determining whether to prepare an EIS and
that because the harm from the entire project “significantly
affect[ed] the quality of the human environment” (2 U.S.C.
4332 (2C)), an EIS had to be prepared. App. 92a. The
district court’s decision cited the abundant law in the Ninth
Circuit that, in determining whether to prepare an EIS, a federal
agency should consider all parts of a project that are
interconnected and do not have independent utility. App. 64a.
See, e.g., Save The Yaak Comm. v. Block, 840 F.2d 714 (9th
Cir. 1988); Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985).
In reversing the decision of the district court, the court of
appeals stated (App. 21a):
The district court’s determination that the project
a
18
would not be able to proceed as planned without the
permit and that the filling of the wetlands would not
occur without the project is correct.
However, despite this explicit agreement with the central
factual findings of the district court, the court of appeals then
immediately stated that this type of interdependence is not
important since “[i]f this type of connection alone were
sufficient to require a finding that an entire project falls within
the purview of the Corps’ jurisdiction, the Corps would have
jurisdiction over all such projects * * *.” App. 21la-22a. The
court of appeals then stated that “the Corps does not have
independent jurisdiction over the parts of the Phase |
development that do not require the filling of wetlands.” App.
22a. Thus, the court of appeais concluded that, despite the
interconnection of the filling of wetlands and the rest of the
project, the harm from the entire project could not be
considered together in determining whether an EIS had to be
prepared because of the Corps’ lack of jurisdiction over the rest
of the project. In other words, the court of appeals determined
that the Corps could not consider impacts -- whether they were
direct, indirect or cumulative -- unless they were within the
regulatory jurisdiction of the Corps.
Subsequently, the court of appeals suggested that it did not
accept the district court’s findings as to the interconnection of
the filling of wetlands and the remainder of the project.
However, in doing so, the court of appeals repeatedly indicated
that its position was based on the Corps’ lack of regulatory
jurisdiction except over the wetlands permit. The court of
appeals found (App. 22a):
The Corps determination that it did not have
jurisdiction over the upland development is supported
by the record. Phase I encompasses development of
19
approximately 600 acres, only 16 of which are subject
to direct control by the Corps through the permitting
process. It appears that the project certainly could
proceed without the permit.
The court of appeals then noted that the project was not
financed by federal money and that state and local, not federal,
regulations controlled the project design. App. 22-23a.
Next, the court of appeals stated that (App. 23a):
The fill of the eight acres of wetlands for the purpose
of creating the freshwater marsh could well be
undertaken without the overall project, as well. The
freshwater marsh sub-project has value in and of
itself. Moreover, although there may be no reason to
fill the remaining eight acres of wetlands if the rest of
Phase | is not to be built, the regulations make clear
that federal jurisdiction over this small segment of the
development is not “control and responsibility” over
the rest of the project sufficient to federalize the entire
project.
Thus, the court of appeals admitted that at least 8 of the 16
acres subject to the wetlands permit were interconnected with
the rest of Phase I because there would be no reason to fill them
if the rest of Phase I did not proceed. App. 23a. However, the
court of appeals concluded that even though these parts were
interconnected, the environmental impact from all of Phase I
could not be considered together with the environmental impact
to the wetlands because of the Corps’ lack of regulatory
jurisdiction over the remainder of Phase I. Jbid.
The court of appeals’ opinion is not a model of consistency
or clarity. Nonetheless, the heart of the decision is that because
20
the Corps does not have regulatory jurisdiction over anything
but the filling of wetlands, the district court’s erred in
determining that the environmental impacts: (a) from either the
filling of the wetlands and the rest of Phase I; or (b) from the
filling of the wetlands and the entire project, must be )
considered together. Thus, the court of appeals determined that |
in deciding whether to proceed with an EIS, the Corps properly |
limited its focus to the environmental impacts created solely by
the activity over which it has regulatory jurisdiction.
1. The determination of the court of appeals that the
Corps need not consider the environmental impacts caused |
outside its regulatory jurisdiction conflicts with the decision of
this Court in Robertson v. Methow Valley Citizens Council,
supra, 490 U.S. 332. That case arose out of the Forest
Service’s decision to issue a special use permit authorizing the
development of an Alpine ski resort. /d. at 337. The private
developer had applied for a special use permit to develop and
operate the “Early Winters Ski Resort” both inside the North
Cascades National Park and on a 1,165 acre parcel of land that
it had acquired adjacent to the National Forest. /d. at 338. The
Forest Service prepared an EIS (“Study”) on the entire project,
including the portion on the developer’s land, which was not
within the jurisdiction of the Forest Service. This Court noted
that (id. at 339):
PO ee eee eg ey Pe ee ee ee ee ee re
The Study considered the effect of each level of
development on water resources, soil, wildlife, air
quality, vegetation, and visual quality, as well as land
use and transportation in the Methow Valley, probable
demographic shifts, the economic market for skiing
and other summer and winter recreational activities in
the Valley, and the energy requirements for the ski
area and related developments. The Study’s
discussion of possible impacts was not limited to on- :
eS
21
site effects, but also, as required by Council on
Environmental Quality (CEQ) regulations, see 40
C.F.R. 1502.16.(b) (1987), addressed off-site impacts
that each alternative might have on community
facilities, socio-economic and other environmental
conditions in the Upper Methow Valley. (internal
quotations omitted)
Even though the EIS found that “due to uncertainty of where
other public and private lands may become developed, it is
difficult to evaluate the off-site impacts” (internal quotations
omitted) (ibid), the EIS offered suggestions on ways to
mitigate significant impacts through use of conservation
easements on private lands and through acquisitions and
management options by local and state governments (id. at 343-
344).
This Court specifically concluded that the Forest Service
had to look outside its jurisdiction in preparing the EIS. This
Court found that because (490 U.S. at 350):
“with respect to a development such as Sandy Butte,
where the adverse effects on air quality and the mule
deer herd are primarily attributable to predicted off-
site development that will be subject to regulation by
other governmental bodies, the EIS serves the
function of offering those bodies adequate notice of
the expected consequences and the opportunity to plan
and implement corrective measure in a_ timely
manner.”
In finding that the discussion of mitigation measures in the EIS
was sufficiently detailed, the Court placed great weight on the
fact that “the off-site effects on air quality and on the mule deer
herd cannot be mitigated unless nonfederal government
22
agencies take appropriate action” and “‘it is those state and local
governmental bodies that have jurisdiction over the area in
which the adverse effects need be addressed and |] they have
the authority to mitigate them.” /d. at 352.
This Court therefore recognized in Robertson that, even
though the private lands were outside the jurisdiction of the
Forest Service, it still needed to consider how future
development of those private lands would affect the
environment. If an agency is required to look at impacts
outside its regulatory jurisdiction when preparing an EIS, then
_ certainly it must look outside this jurisdiction when
determining whether to prepare an EIS at all. Therefore, the
court of appeals’ decision to allow the Corps to ignore the
upland development and its impacts when deciding whether to
prepare an EIS, based on the limit of the Corps’ regulatory
jurisdiction, is in clear conflict with Robertson.
2. The decision of the court of appeals is also in conflict
with the decisions of other circuits. In Sierra Club v. Marsh,
769 F.2d 868, 872 (1st Cir. 1985), the Corps of Engineers and
Federal Highway Administration decided not to prepare an EIS
on a Causeway, marine terminal and industrial park. The court
of appeals, in an opinion by then Judge Breyer, stated that “one
challenging a decision nof to prepare an EIS must show a
substantial possibility that agency action could significantly
affect the quality of the human environment.” (internal
quotations omitted). /d. at 870. The court found that the
agencies’ EA’s had analyzed the environmental effects of the
causeway and terminal (id. at 876) and that the court could not
find that the decision based on these effects alone was
“arbitrary, capricious, or an abuse of discretion’ ” (id. at 877).
However, the court of appeals held that the federal agencies
were also required to consider, in determining whether to
prepare an EIS, the environmental effects from the industrial
23
park. /bid. The court held that the federal agencies had to
consider this development even though the industrial park
involved private land, would be used by private industries, and
would be subject to zoning by local governments. /d. at 872,
878, 880.
The court of appeals found that the effects of the industrial
park were not speculative. 769 F.2d at 878. It emphasized that
the port, causeway, and industrial park were part of an
“integrated plan” (ibid.) and that both the landowner and town
had prepared documents analyzing the likely development (id.
at 879). The court then noted that the EA’s had analyzed “to
some extent” the likely effects of the industrial park, but that
the federal agencies had concluded that there would be an
insignificant impact on the environment. /d. at 880. The court
of appeals found that “the relevant federal agencies’
conclusions that the project would have no significant impact
rest not so much on their belief that the industrial park would
not affect the environment, as upon their belief that they need
not take account of the industrial park’s effects.” /d. at 881.
The court held that these effects had to be considered and,
based on this consideration, preparation of an EIS was required.
Sierra Club v. Marsh is virtually identical to the present
case. In both cases, there was a plan which included activities
not within the jurisdiction of the federal agencies. In both
cases, the EA’s discussed the environmental impact of the
activities not within the jurisdiction of the federal agencies. In
both cases, the federal agencies did not consider significantly
(Sierra Club v. Marsh) or at all (this case) the impacts of the
activities outside federal agency jurisdiction in determining
whether to prepare an EIS. Thus, Sierra Club v. Marsh is in
direct conflict with the decision of the court of appeals here.
In Sierra Club v. U.S. Forest Service, 46 F.3d 835, 837
24
(8th Cir. 1995), the Sierra Club challenged the Forest Service's
EA, which had been prepared “to determine whether timber
sales in Victoria would significantly affect the environment,”
because the EA had failed to consider the cumulative impacts
from private acts on private lands. The project involved an area
of 16,883 acres in the Black Hills National Forest, including
1,511 acres of private land. /bid. The Court of Appeals for the
Eighth Circuit recognized that “40 C.F.R. § 1508.7 requires an
EA to consider impacts resulting from the activities of Federal
or non-Federal agencies or persons” and stated that this
provision required “analysis of the impacts [that] activities on
private land have on the Forest.” /d. at 839. The court of
appeals held that the “district court erred in concluding
otherwise.” /bid. While the court of appeals held that an EIS
was not required for other reasons (id. at 840), it clearly held
that analysis of activities outside the jurisdiction of the federal
agency must be considered in determining whether to prepare
an EIS. Thus, the decision as to the scope of consideration in
determining whether to prepare an EIS in Sierra Club v. U.S.
Forest Service is in conflict with the decision of the court of
appeals here.
In Society Hill Towers Owners’ Assn. v. Rendell, supra,
210 F.3d at 172, the plaintiff claimed that the City of
Philadelphia had not properly performed the required
environmental review under NEPA prior to the Department of
Housing and Urban Development’s (“HUD”) approval of an
Urban Development Action Grant. In determining that HUD
had properly decided that an environmental impact statement
was not required, the Court of Appeals for the Third Circuit
considered “the impact of future development that has been
identified in several planning documents including a proposed
‘mega’ entertainment complex.” /d. at 182. Although the court
of appeals held that the other development, which was not
25
subject to HUD’s jurisdiction,’ need not be considered in
determining whether to issue an EIS in this case, it did so only
because “[i]t is not at all certain that the proposed ‘mega’
entertainment complex or any of the projects included in the
planning document will ever be completed.” Jbid. Thus, the
court recognized that impacts outside HUD’s control must be
considered under NEPA, even if they are not within HUD’s
jurisdiction, if they are virtually certain to be completed as in
the present case.
The Court of Appeals for the Fifth Circuit has similarly
recognized that NEPA review requires analysis of connected
activities even though they are outside the jurisdiction of the
federal agency involved. In Vieux Carre Prop. Owners, Res. v.
Pierce, 719 F.2d 1272, 1278 (Sth Cir. 1983), the court
considered the adequacy of an EA, which was the basis for the
decision that an EIS did not need to be prepared. The court
noted that HUD’s NEPA regulations require that “[rjegardless
of funding sources, integrally related activities designed to
accomplish, in whole or in part, a specific goal are to be
grouped together for consideration as a single project.” /d. at
1277. It recognized that the impacts from a hotel and shopping
mall that were being privately funded and were separate from
the specific project at issue must be included in the
environmental assessment since they were “integrally related
and part of the developer’s strategy for the treatment of the
project area” (internal quotations omitted). Jbid This is
equally true in the present case.
3. The court of appeal’s decision also conflicts with the
regulations of the Council on Environmental Quality
implementing NEPA. By allowing the Corps to limit its
“The entertainment complex had been part of the original proposed project,
but the application to HUD was amended to exclude it. 2 10 F.3d at 172.
26
consideration to only impacts within its regulatory jurisdiction
when deciding whether to prepare an EIS, the Ninth Circuit has
eliminated CEQ’s requirement for an agency to consider the
full range of impacts that a proposed action will have on the
environment at the very outset. The CEQ regulations provide
that “[e]ffects and impacts as used in these regulations are
synonymous” and “[e}ffects 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.” 40 C.F.R. 1508.8. The CEQ regulations define
cumulative impacts broadly as (40 C.F.R. 1508.7):
“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.”
(emphasis added)
Thus, the impacts that an agency is required to consider are
explicitly not confined to the agency’s regulatory jurisdiction.
Furthermore, the CEQ regulations require agencies to
consider “connected actions” and “cumulative actions” within
a single EA or EIS to determine whether there is a significant
impact. 40 C.F.R. 1508.25. In order to determine whether a
cumulative or connected action has a significant impact, the
CEQ regulations require an agency to ascertain (40 C.F.R.
1508.27(b)(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
27
environment. Significance cannot be avoided by
terming an action temporary or by breaking it down
into smaller parts.
Thus, the CEQ regulations clearly provide for the
consideration of actions outside of the jurisdiction of the
agency. This Court has held that the CEQ regulations are
entitled to “substantial deference.” Andrus v. Sierra Club, 442
U.S. 347, 358 (1979); Robertson v. Methow Valley Citizens
Council, supra, 490 U.S. at 355.
4. The importance of this issue cannot be underestimated.
“An EA aims to simply identify (and assess the ‘significance’
of) potential impacts on the environment.” Sierra Club v.
Marsh, supra, 769 F.2d at 875. In determining whether an
action could have a significant impact, it is essential that an
agency be required to look cutside its regulatory jurisdiction to
make this threshold deterniination. Confining an agency’s
review to its regulatory jurisdiction would thwart NEPA’s basic
requirement that an agency adequately assess whether an
action, including its direct, indirect, and cumulative impacts,
poses a threat to the environment. This preliminary
determination in an EA of whether there are significant impacts
is especially important when the action being reviewed is one
part of a larger planned project.
Environmental impact statements frequently analyze other
portions of projects over which the federal agency has no
regulatory jurisdiction but are part of the same project. For
example, EIS’s on federally funded highways customarily
consider the environmental impacts of the development that are
expected to be induced by construction of the highway. Those
developments are normally constructed by private developers
and permits are usually given by local governments. If the
environmental impact of most of the project were not to be
28
considered, as in this case, the protection afforded by NEPA to
the environment by requiring analysis and consideration of the
full environmental effects of a project wouid be seriously
undermined.
Moreover, the issue of the scope of environmental review
and segmentation under NEPA is dealt with in the regulations |
of numerous government agencies and in dozens of judicial
decisions. We have seen above that the regulations of the
Council on Environmental Quality deal with these issues. So
do the regulations of the Corps and other agencies. See, ¢.g.,
33 C.F.R. 325, Appendix B, Sec. 7(b), 23 C.F.R. 771.111(f); 24
C.F.R. 50.32; 36 C.F.R. 219.4. Segmentation of NEPA review
has been litigated in dozens of cases.” These regulations and
decisions reflect the fact that this issue is crucial to whether
NEPA will continue to force agencies to consider fully the
environmental impacts resulting from their actions.
CONCLUSION
For the foregoing reasons, petitioners respectfully submit
that the petition for a writ of certiorari should be granted.
Respectfully submitted,
Bruce J. Terris*
Kevin O. Leske
(*Counsel of Record)
May 10, 2001
YE. g.,Conservation Law Found. v. Federal Hwy. Admin., 24
F.3d 1465 (1st Cir. 1994); Sierra Club v. Froehlke, 534 F.2d
1289 (8th Cir. 1976); Sierra Club v. Lujan, 949 F.2d 362 (10th
Cir. 1991); Park County Resource Council, Inc. v. United
States Dep't of Agric., 817 F.2d 609 (10th Cir. 1987).
APPENDIX
la
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WETLANDS ACTION NETWORK,
a California non-profit organization;
BALLONA WETLANDS LAND
TRUST, a California non-profit
organization,
Plaintiffs-Appellees,
Vv.
UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the
United States; MICHAL R.
ROBINSON, in his capacity as
District Engineer of the United
States Army Corps of Engineers;
JOE N. BALLARD, in his capacity
as Chief Engineer of the United
States Army Corps of Engineers,
Defendants,
and
PLAYA CAPITAL COMPANY,
L.L.C., as successor-in-interest to
Maguire Thomas
Partners-Playa Vista,
Defendant-Intervenor-
Appellant.
No. 98-56242
D.C. No. CV-96-
08407-RSWL
WETLANDS ACTION NETWORK, a
California non-profit organization;
CALIFORNIA PUBLIC INTEREST
RESEARCH GROUP,
Plaintiffs-Appellants,
No. 98-56474
CV D.C. No.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
) 96-08407-RSWL
)
)
)
2a
and
BALLONA WETLANDS LAND
TRUST, a California non-profit
organization,
Plaintiff,
V.
UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the
United States; MICHAL R.
ROBINSON, in his capacity as
District Engineer of the United
States Army Corps of Engineers;
JOE N. BALLARD, in his capacity
as Chief Engineer of the United
States Army Corps of Engineers,
Defendants,
and
PLAYA CAPITAL COMPANY,
L.L.C., as successor-in-interest to
Maguire Thomas Partners-PlayaVista,
Defendant-Intervenor
Appellee.
No. 98-56672
D.C. No. CV-96-
WETLANDS ACTION NETWORK, a
California non-profit organization
BALLONA WETLANDS LAND 08407-RSWL
TRUST,
CALIFORNIA PUBLIC INTEREST
RESEARCH GROUP,
Plaintiffs-Appellants,
OPINION
VS.
UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the United
Nee ee we OO ONO ee wes ews ee a eee eee eee ae a
3a
States; JOE N. BALLARD, in his
capacity as Chief Engineer of the
United States Army Corps of
Engineers; ROBERT L. DAVIS, Col.,
Defendants-Appellants,
Ne eee ese Se
Appeals from the United States District Court
for the Central District of California
Ronald S. W. Lew, District Judge, Presiding
Argued and Submitted
May 4, 1999--Pasadena, California
Filed August 21, 2000
Before: Melvin Brunetti, Kim McLane Wardlaw,
Circuit Judges, and John W. Sedwick,!1 District Judge.
Opinion by Judge Brunetti
COUNSEL
Charles S. Treat, Leslie A. Pereira, Robert D. Crockett,
Adam H. Braun, Latham & Watkins, Los Angeles, California,
for appellant Playa Capital Company, L.L.C., successor-in-
interest to Maguire Thomas Partners-Playa Vista.
Charles S. Crandall, San Diego, California, and David
H. Williams, Public Interest Lawyers Group, San Francisco;
California, for appellees, Wetlands Action Network and
California Public Interest Research Group.
“The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
4a
Anthony P. Hoang, Robert L. Klarquist, Mark R. Haag,
DAG, Washington, D.C., John Gleason, U.S. Army Corps of
Engineers, Ventura, California, and Lyn Cox, Office of
Regional Solicitor, Department of Interior, Sacramento,
California, for appellants-cross-appellees, United States Corps
of Engineers.
Carlyle W. Hall, Jr., Hall & Associates, Los Angeles,
California, for amicus Friends of Ballona Wetlands.
OPINION
BRUNETTI, Circuit Judge:
This case involves a challenge by environmental groups
to the United States Army Corps of Engineers ("Corps")
decision to grant Maguire Thomas Partners-Playa Vista ("MTP-
PV") a permit to fill 16.1 acres of federally delineated
wetlands and to mitigate the fill by creating a 5l-acre
freshwater wetland system. Wetlands Action Network and
California Public Interest Research Group (collectively
“WAN") brought suit in the district court alleging that the
Corps had failed to fulfill their legal obligations under the
Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., and the
National Envi ronmental Policy Act ("NEPA"), 42 U.S.C. §
4321 et seq., in granting MTP-PV a fill permit pursuant to
section 404 of the CWA. The district court denied MTP-PV's
motion to intervene as a right in the NEPA claims but granted
“The Defendant-Intervenor-Appellant Playa Capital Company is the
successor-in-interest to Maguire Thomas Partners-Playa Vista. For clarity
and consistency, we refer to the developer as MTP-PV as did the district
court.
Sa
MTP-PV's motion in the alternative for permissive intervention.
The district court, however, limited MTP-PV's participation in
the NEPA claims to the relief phase. MTP-PV appeals this
decision.
The district court granted summary judgment to WAN
on its NEPA claims, invalidated the permit, and enjoined MTP-
PV from any further construction activities in the area covered
by the permit.” The Corps appeals the district court's
determination that it violated NEPA. MTP-PV appeals the
district court decision to issue the injunction claiming that (1)
the district court committed error by denying MTP-PV a
hearing on the remedial phase of the proceedings, (2) the
injunction is moot, (3) the district court erred in failing to
balance the equities of a permanent injunction, and (4) the
district court should not have issued the injunction as WAN is
guilty of laches. WAN filed a cross-appeal claiming that the
district court abused its discretion in failing to broaden the
injunction in order to protect the integrity of the environment
and the NEPA process during the preparation of the
Environmental Impact Statement ("EIS"). We consolidated the
appeals and we affirm in part and reverse in par’.
Since 1979, MTP-PV and its predecessor-in-interest
have been planning to build a large scale mixed use
development on the Playa Vista property. The proposed
development is expected to cover over 1,000 acres and include
residential areas, a marina, and numerous commercial
“In a separate order, the district court granted the Corps’ motion for
summary judgment on WAN's CWA claim. WAN did not appeal that
decision.
6a
developments including hotels, retail establishments, and an
entertainment media and technology district. The project has
been the subject of much dispute as the Playa Vista property is
the largest remnant parcel of undeveloped land in a heavily
urbanized western portion of Los Angeles County.”
The Playa Vista property contains approximately 186
acres of federally delineated wetlands. As part of its project,
MTP-PV plans to eventually dredge and fill 21.4 acres of
wetlands. Before preparing an application for a dredge and fill
permit for any of the project activities, MTP-PV met with the
Corps to determine the proper division of the project for
permitting purposes. MTP-PV proposed to divide the overall
project into the following three separate permit applications to
correspond to the three separate phases of the project:
The first phase is for authorization to fill 7.8
acres of scattered wetland patches in Areas B,
‘Amicus Curiae Friends of Ballona Wetlands challenged the California
Coastal Commission's decision to certify the County's land use plan
allowing for the development of Playa Vista. This litigation was settled in
1990. In 1993, an environmental group challenged the legality of the City
of Los Angeles’ Final Environmental Impact Report (“EIR”) for the first
phase of this project. The superior court found that the EIR was sufficient
as an information document in that it disclosed the significant
environmental effects and contained adequate alternative site, mitigation
and cumulative impacts analysis. The court also rejected the plaintiffs claim
that the City had impermissibly “piecemealed” the environmental review
process by limiting its review to the first phase of the project. In 1996, one
of the plaintiffs here challenged the City's environmental review of project
modifications to accommodate development of the entertainment and media
district and the wetlands design. The state court of appeals affirmed the
state trial court's approval of the City's review process.
Ta
C, and D® for mixed-use development. It also
includes the creation of a 52-acre fresh water
wetland complex which [MTP-PV] proposes 2s
mitigation for a total of 21.4 acres of wetlands
that would be dredged and filled for all phases
of the Playa Vista project. The creation of the
freshwater wetland system would require filling
7.7 acres of wetlands in Area B for the berm
(4.0 acres of which would be restored to
wetlands leaving 3.7 acres as permanently
filled).
The second phase is for the restoration and
creation of a salt marsh which would occur in
160 acres of delineated degraded wetlands in
Area B. By restoring those wetlands and
converting uplands to wetlands, an
approximately 230-acre salt marsh system
would be created.
The third is for the development of a marina and
ecological enhancement of the Ballona flood
control channel which will dredge and fill 9.8
acres of wet lands in Area A. Of that, 3.7 acres
are a man-made drainage ditch and 8.1 acres are
scattered, degraded wetlands.
U.S. Army Corps of Engineers, Public Notice of Permit
Application at 4-5 (January 2, 1991). The Corps agreed that it
was appropriate to divide the overall project into three phases
for permitting purposes as each of the proposed phases had
~For planning purposes, MTP-PV divided the Playa Vista project site into
four parcels designated Areas A, B, C, and D.
8a
independent viability.
In August 1990, MTP-PV applied to the Corps for a
permit to fill 16.1 acres of federally delineated wetlands as part
of Phase I of the project.® The eight acres proposed to be filled
for multi-use development are man-made flood control ditches
and degraded wetlands located in seventeen isolated patches
across the Playa Vista property. The remaining eight acres,
located in Area B, MTP-PV proposed to fill in order to create
a 51.1 acre freshwater wetland system consisting of 26 acres of
freshwater marsh and 25 acres of freshwater riparian corridor.
Of the latter eight acres, four of the acres are to be restored to
wetlands and the remaining four are to be permanently filled to
create a berm between the freshwater wetland system and a
saltwater marsh which MTP-PV plans to restore as part of
Phase II of the project.
In October 1990, MTP-PV submitted an analysis of
alternatives to the proposed filling of wetlands. The analysis
describes six alternatives including four different configurations
of the mixed-use development which avoid all or part of the
wetlands as well as the possibility of using an offsite location
for the development. Based on its analysis, MTP-PV con-
cluded that there was no practical alternative way to accomplish
its purpose of building an environmentally sensitive
development that would not result in other significant
environmental impacts.
On January 2, 1991, the Corps issued a public notice of
the permit application. The notice described the activity for
“Phase I of the project involves the development of approximately 5 million
square feet of office space, 13,000 residential units, and hotel and retail
space.
9a
which the permit was requested as well as the entire Playa Vista
development. The notice also included the Corps' preliminary
determination that an EIS would not be required for the work
proposed in Phase I of the project. The Corps solicited
comments from the interested public and relevant state and
federal resource agencies. The period of public review of the
permit application originally was set for January 1, 1991 to
February 2, 1991. The Corps extended the review period to
February 15, 1991 at the request of the EPA.
The Corps received numerous comments from the
general public, environmental groups, and state and federal
resource agencies. In particular, the United States Fish and
Wildlife Service ("FWS"), the National Marine Fisheries
Service ("NMFS") and the Environmental Protection Agency
("EPA") expressed concern that, inter alia, the notice of intent
and the permit application did not containa sufficiently detailed
analysis of project alternatives and did not provide a
comprehensive evaluation of the cumulative impacts
attributable to the entire development project.
In response to the comments received, MTP-PV
submitted to the Corps comments addressing the concerns
raised by FWS and NMFS. MTP-PV also submitted a revised
“Practical Alternative Analysis" which contained an analysis of
five alternatives to the mixed-use development portion of the
project and six alternatives to the freshwater wetland system
portion. To further supplement its analysis, MTP-PV also
submitted three scientific studies: "Biological Value of the
Ballona Wetlands System," "Water Balance for the Proposed
Freshwater Wetland System," and "Water Demand of the
Proposed Ballona Freshwater Wetland System."
In order to resolve the resource agencies’ remaining
10a
concerns about the project, the Corps met with representatives
of the FWS, NMFS, EPA, and the California Department of
Fish and Game on November 7, 1991. At this meeting the
agencies expressed concern regarding the three-permit approach
to the project and requested that the Corps delay review and
approval of any component of the project until MTP-PV had
submitted an application for Phase II of the project.
After reviewing documentation submitted by MTP-PV
addressing the agencies’ concerns, the Corps found that MTP-
PV's responses to the comments were acceptable. The Corps
determined, however, that MTP-PV would be required to
provide in-kind mitigation for any salt marsh habitat lost as a
result of the project.
On February 25, 1992, pursuant to CWA § 404(q), the
Corps sent a first informal notice of intent to issue MTP-PV's
permit to NMFS, EPA, and FWS. On April 8, 1992, the Corps
met with the agencies to discuss their concerns. The agencies
requested additional documentation regarding the freshwater
wetlands system which MTP-PV supplied on April 17, 1992.
After meeting with the Corps again on May 5, 1992, and MTP-
PV on May 6, 1992, NMFS reached an agreement with MTP-
PV which resolved its concerns. MTP-PV agreed to inclusion
in the permit of various special permit conditions proposed by
NMFS and the EPA.
On May 22, 1992, the Corps issued a second notice of
intent to issue the permit which included a_ revised
Environmental Assessment ("EA") and the modified special
conditions suggested by the agencies. After receiving the
requested technical information, EPA, NMFS, and FWS
decided not to objeci further to the issuance of the permit for
Phase | of the Playa Vista project.
The Corps issued the permit and special conditions
along with the associated EA and Finding of No Significant
Impact ("FONSI") on July i, 1992. In the EA, the Corps found
that the division of the project into three applications was a
logical division and did not constitute inappropriate
piecemealing of the overall project. Due to the relatedness of
the three phases, however, the Corps found that it would accept
mitigation credit for the future projects as part of Phase I,
provided that the later phases eventually receive authorization
and that the "success criteria" for the freshwater wetland system
are met.
The EA also contained a discussion of alternatives to
the project including: (1) no action alternative; (2) alternative
project designs; (3) the creation of a salt marsh in lieu of the
freshwater wetland system; and (4) possible off-site locations.
The Corps ultimately determined that there were no practical
alternatives to the proposed project that would result in less
adverse impacts on the environment.
In the EA, the Corps evaluated the cumulative impact
that the project would have on the surrounding areas. The
Corps found, however, that it did not need to include
substantial consideration of the development in the uplands area
as part of the NEPA review of permit application because it
found that such development was outside its jurisdiction. A
discussion of the comments received during the public notice
period was also included in the EA as well as the Corps’
responses to the concerns raised.
The Corps ultimately determined that the project would
result in a net increase in wetland values. After reviewing the
information provided by MTP-PV and all interested parties, the
Corps found that the permit action at issue would not have a
12a
significant impact on the quality of the human environment and
that an EIS would therefore not be required. The Corps issued
the permit. On April 20, 1993, MTP-PV executed and
transmitted the permit to the Corps. Following the issuance of
the permit, MTP-PV performed extensive filling, clearing, and
grading in the wetlands in the permit area.
On December 3, 1996, WAN brought five claims
against the Corps, four alleging violations of NEPA and the
fifth alleging a violation of the CWA. WAN sought to have all
construction at the site enjoined until the Corps issued an EIS
as well as a preliminary injunction.
On August 22, 1997, the district court granted MTP-
PV's motion to intervene as to the CWA claim. The district
court denied MTP-PV's motion to intervene as of right with
regard to the NEPA claims, but granted it permissive right to
intervene in the remedial phase of such claims.
On November 6, 1997, the district court denied WAN's
motion for a preliminary injunction finding that WAN was
unlikely to succeed on the merits of its CWA and NEPA
claims. We dismissed WANs interlocutory appeal of that order
on May 18, 1997. We found that because WAN had not shown
a continuing cognizable injury for which the requested
preliminary injunction would provide relief, the appeal of the
NEPA claims was moot. On November 14, 1997, the district
court granted MTP-PV's and the Corps’ motion for partial
summary judgment as to the CWA claim.
On June 26, 1998, the district court granted WAN's
motion for summary judgment on its NEPA claims. The district
court found that the Corps had violated NEPA by improperly
limiting the scope of its analysis to the impacts-of activities
13a
covered by the permit, rather than considering impacts
associated with the whole development project. The district
court further found that even if the scope of the analysis were
proper, the Corps decision to issue a EA rather than an EIS was
arbitrary and capricious because of the untested nature of the
freshwater wetlands system, the lack of a fully developed
mitigation plan, and the controversy that surrounded the Corps'
determination of the permitted activities’ nature and effect. The
district court rescinded the permit and enjoined MTP-PV from
any further construction activities in the area covered by the
permit. The district court did not hold a hearing regarding the
propriety of issuing an injunction in this case, and MTP-PV
was therefore not allowed to enter evidence on this issue. The
district court denied WAN's motion to enjoin MTP-PV from
continuing werk onthe upland portion of its property on July
13, 1998. The final judgment issued on August 10, 1998, and
the district court denied reconsideration on August 21, 1998.
II.
A. Intervention as of Right Under NEPA
MTP-PV appeals the district court's decision to deny
its motion to intervene as of right on the merits of the NEPA
claims. We review a district court's ruling on a motion to
intervene as a matter of right de novo. Forest Conservation
Council v. United States Forest ; ervice, 66 F.3d 1489, 1493
(9th Cir.1995).
To intervene as of right under Federal Rule of Civil
Procedure 24(a) an applicant must claim "an interest relating to
the property or transaction which is the subject of the action,"
the protection of which may, as a practical matter, be impaired
or impeded by the action if the applicant is not allowed to
l4a
participate in the litigation. See Fed. R. Civ. P. 24(a).7 We
apply the following four-part test to determine if an applicant
has a right to intervene:
(1) the motion must be timely; (2) the
applicant must claim a_ "significantly
protectable" interest relating to the
property or transaction which is the subject
of the action; (3) the applicant must be so
situated that the disposition of the action
may as a practical matter impair or impede
its ability to protect that interest; and (4)
the applicant's interest must be
inadequately represented by the parties to
the action.
Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir.1993).
As a general rule, "the federal government is the only
proper defendant in an action to compel compliance with
NEPA." Churchill County v. Babbitt, 150 F.3d 1072, 1082, as
amended by 158 F.3d 491 (9th Cir.1998); see also Forest
Conservation Council, 66 F.3d at 1499; Sierra Club, 995 F.2d
at 1485; Portland Audubon Society v. Hodel, 866 F.2d 302, 309
(9th Cir.1989). "The rationale for our rule is that, because
7Rule 24(a) provides:
Upon timely application anyone shall be permitted to intervene
in an action . . . (2) when the applicant claims an interest
relating to property or transaction which is the subject matter of
the action and the applicant is so situated that the disposition of
the action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties.
PMH IN Uk any petits naar oazanieny ques
15a
NEPA requires action only by the government, only the
government can be liable under NEPA." Churchill County, 150
F.3d at 1082. Because a private party can not violate NEPA, it
can not be a defendant ina NEPA compliance action. Jd. Based
on this rule, the district court found that MTP-PV did not assert
a legally protectable interest that relates to the NEPA claims.
MTP-PV argues that the "none but a federal
defendant" rule does not apply to NEPA actions involving an
attack upon a permit issued to a private party. The cases on
which MTP-PV relies, however, do not support this
proposition. For example, in Foundation for Horses v. Babbitt,
154 F.3d 1103 (9th Cir.1998), the plaintiffs alleged that the
National Park Service violated NEPA when it decided to
remove a herd of horses from national park land and individual
defendants were joined because of their purported interest in the
horses. Contrary to MTP-PV's contention that we held that such
a property interest was sufficient to remove the case from the
normal rule that only the federal government should be a
defendant in a NEPA suit, we found that the "normal rule" did
not apply to the case because NEPA did noi apply to the
agency's decision to remove privately owned horses. /d. at
1106.
MTP-PV's assertion that Ninth Circuit precedent
prevents us from adopting a broad interpretation of Churchill
County is without merit. Specifically, MTP-PV avers that a
broad reading of Churchill County would squarely conflict with
County of Fresno v. Andrus, 622 F.2d 436 (9th Cir.1980). In
Churchill County, however, we addressed the issue of whether
County of Fresno represents an exception to the general rule
that only the federal government can be a defendant ina NEPA
compliance action. We noted that"[WJhatever exception County
of Fresno represents, however, has been limited by later
l6a
decisions to the remedial phase of a trial." 150 F. 3d. at 1083
(citing Forest Conservation Council, 66 F.3d at 1499 n.11;
Sierra Club, 995 F.2d at 1485). Churchill County is controlling
here and we therefore affirm the district court's decision to limit
MTP-PV's intervention in the NEPA action to the remedial
phase.
B. NEPA Claims
1. Standard of Review
We review de novo a district court's decision to grant
summary judgment. Blue Mountains Biodiversity Project v.
Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998), cert. denied,
527 U.S. 1003, 119 S. Ct. 2337, 144 L.Ed. 2d 235 (1999). The
Corps' decision to prepare an EA rather than an EIS is reviewed
under the APA's arbitrary and capricious standard. Northwest
Environmental Defense Center v. Bonneville Power
Administration, 117 F.3d 1520, 1536 (9th Cir.1997). The
arbitrary and capricious standard requires a court "to ensure that
an agency has taken the requisite ‘hard look’ at the
environmental consequences of its proposed action, carefully
reviewing the record to ascertain whether the agency decision
is ‘founded on a reasoned evaluation of the relevant factors.”"
Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.
1992) (quoting Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 373-74, 378, 109 S.Ct. 1851, 104 L. Ed. 2d 377
(1989)) (internal quotations omitted). This standard of review
is deferential: we cannot substitute our judgment for that of the
agency. City of Carmel-By-The-Sea v. U.S. Dep't. of Transp.,
123 F.3d 1142, 1150-51 (9th Cir.1997). The agency's decision
will only be overturned if the agency committed a "clear error
in judgment." Northwest Environmental Defense Center, 117
F.3d at 1536 (quoting Marsh, 490 U.S. at 378, 385, 109 S. Ct.
a 3 pets von seenieennesteann .
OPO Fe IO PP ie La Hey ec tpt ys wen oh
17a
851) (internal quotation marks omitted).
2. Scope of NEPA Analysis
a. Major Federal Action
NEPA requires a federal agency to prepare an EIS for
all "major Federal actions significantly affecting the quality of
the human environment." 42 U.S.C. § 4332(2)(C). "The NEPA
does not specify the scope of analysis that federal agencies
must conduct in determining whether their actions, when
combined with private actions, come within the mandate of §
4332(2)(C)." Sylvester v. U.S. Army Corps of Engineers, 884
F.2d 394, 398 (9th Cir.1989). The Corps' NEPA implementing
~ regulations, which we upheld in Sylvester, 884 F.2d at 399,
require that, where the activity requiring a DA permit is
“merely one component of a larger project," the Corps "address
the impacts of the specific activity requiring [a] permit and
those portions of the entire project over which the district
engineer has sufficient control and responsibility to warrant
Federal review" in the EA or EIS. 33 C.F.R. Part 325 Appendix
B § 7(b). The Corps' determination of the appropriate scope of
the environmental review process is entitled to deference. See
Marsh, 490 U.S. at 375-76; Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 359, 109 S. Ct. 1835, 104 L.
Ed. 351 (1989).
The Corps' NEPA implementing regulation provides
in pertinent part:
b. Scope of analysis. (1) In some
situations, a permit applicant may propose
to conduct a specific activity requiring a
Department of the Army (DA) permit (e.g.,
18a
construction of a pier in a navigable water
of the United States) which is merely one
component of a larger project (e.g.,
construction ofan oil refinery on an upland
area). The district engineer should
establish the scope of the NEPA docu
ment (e.g., the EA or EIS) to address the
impacts of the specific activity requiring a
DA permit and those portions of the entire
project over which the district engineer has
sufficient control and responsibility to
warrant Federal review.
(2) The district engineer is considered to
have control and responsibility for portions
of the project beyond the limits of the
Corps jurisdiction where the Federal
involvement is sufficient to turn an
essentially private action into a Federal
action. These are cases where the
environmental consequences of the larger
project are essentially products of the
Corps permit action.
Typical factors to be considered in
determining whether sufficient "control
and responsibility" exists include:
(1) Whether or not the regulated activity
comprises "merely a link" in a corridor
type project (¢.g., a transportation or
utility transmission project).
(ii) Whether there are aspects of the upland
19a
facility in the immediate vicinity of the
regulated activity which affect the location
and configuration of the regulated activity.
(iii) The extent to which the entire project
will be within Corps jurisdiction.
(iv) The extent of cumulative Federal
control and responsibility.
33 C.F.R. Part 325, Appendix B § 7(b).
The Corps here determined that the EA "need not
include substantial consideration of development in the uplands
because development couid occur in those areas regardless of
whether this permit application is granted." The Corps,
therefore, only considered the environmental impacts resulting
from MTP-PV's application to fill 16.1 aces of wetlands in
constructing Phase I of the development.
WAN contends, and the district court found, that the
Corps improperly limited the scope of its NEPA analysis and
that it was required under NEPA and its own regulations to
evaluate the environmental impacts attributable to the whole
development of Phase I of the project. WAN's argument centers
on the assertion that the upland development planned in Phase
I and the permit activities, i.e. the filling of the wetlands, are
functionally interdependent. Without the permit, WAN avers,
the Phase I development will not proceed and without the
upland development the filling activities would not be justified.
Additionally, WAN posits that the record demonstrates that the
location and configuration of the wetlands to be filled greatly
affected the design of the mixed-use development in Phase I
and that, therefore, the Corps was required to consider the
20a
whole Phase | as a "federal action" for purposes of NEPA.
We have upheld an agency's decision to limit the
scope of its NEPA review to the activities specifically
authorized by the federal action where the private and federal
portions of the project could exist independently of each other.
In Sylvester, we reviewed the Corps' grant of a permit to fill
eleven acres of wetlands in order to construct part of a golf
course which itself was part of a larger resort complex. 884
F.2d at 396. The Corps limited its NEPA review to the impacts
of the construction of the golf course, reasoning that it had no
jurisdiction over the upland development. /d. at 396-397. We
upheld the agency's decision, finding that although the golf
course and the entire resort complex "would benefit from the
other's presence" they were not sufficiently interrelated to
constitute a single "federal action" for NEPA purposes. /d. at
400-01; see also California Trout v. Schaefer, 58 F.3d 469 (9th
Cir.1995) (upholding agency's decision to limit the scope of its
NEPA review to impacts associated with the fill of wetlands
rather than considering the impact on downstream fisheries
from an entire canal project); Enos v. Marsh, 769 F.2d 1363,
1371-72 (9th Cir.1985) (upholding agency's decision to exclude
from its NEPA analysis the impact of non-federal shore
facilities for a new deep draft harbor); Friends of Earth, Inc. v.
Coleman, 518 F.2d 323, 328 (9th Cir.1975) (finding that an
agency was not required to prepare an EIS for state funded
projects in a partially federally funded airport development).
We have also looked to such factors as the degree of federal
funding or supervision over a project. See Enos, 769 F.2d at
1371-72. Deciding whether federal and non-federai activity "are
sufficiently interrelated to constitute a single ‘federal action' for
NEPA purposes will generally require a careful analysis of all
facts and circumstances surrounding the relationship." Friends
of the Earth, Inc. v. Coleman, 518 F.2d 323 (9th Cir. 1975);
2la
accord Enos, 769 F.2d at 1371.
The district court found that the present case is
distinguishable from Sylvester because neither the Phase |
development nor the fill activities would occur independently
of each other. The district court based its conclusion on
evidence in the record which indicated that Phase I of the
project could not proceed in the manner it was planned without
the filling of the wetlands and that there were "crucial linkages"
between MTP-PV's proposed local street grid system and the
filling of the wetlands. The district court also found that, unlike
the permitted activity in Sylvester, the specific activities
authorized in the permit here, the filing of wetlands and the
creation of the 51.1 acre freshwater wetland system, did not
have independent utility.
The district court's determination that the project
would not be able to proceed as planned without the permit and
that the filling of the wetlands would not occur without the
project is correct. The conclusion that the district court drew
from these findings, however, is in error. The linkage that the
district court found between the permitted activity and the
specific project planned is the type of "interdependence" that is
found in any situation where a developer seeks to fill a wetland
as part of a large development project. If this type of connection
alone were sufficient to require a finding that an entire project
falls within the purview of the Corps’ jurisdiction, the Corps
would have jurisdiction over all such projects including those
which the Corps' regulations cite as examples of situations in
- which the Corps would not have jurisdiction over the whole
project. See 33 C.F.R. Part 325, Appendix B § 7(b)(3).
The district court determined that this case was
controlled by Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.
22a
1985), and that the Corps was required to consider the impact
of both the Phase I upland development and the specific filling
activity authorized by the permit in its NEPA analysis. The
district court's reliance on Thomas to answer the question of
whether the Corps has sufficient control and authority over the
upland development to warrant federal review is misplaced. As
is discussed below, Thomas involved a challenge to the Forest
Service's determination that it was not required to consider the
environmental impacts of two related federal actions ina single
permit. In that case, the Forest Service did not dispute the fact
that it would need to assess the environmental impacts of both
actions at some point and that it had jurisdiction over both
actions. Here, by contrast, the Corps does not have independent
jurisdiction over the parts of the Phase I development that do
not require the filling of wetlands. See also, California Trout,
58 F.3d at 474 (noting that Thomas is inapposite where the
federal agency performing the environmental review does not
have control over the whole project).
The Corps determination that it did not have
jurisdiction over the upland development is supported by the
record. Phase | encompasses development of approximately
600 acres, only 16 of which are subject to direct control by the
corps through the permitting process. It appears that the project
certainly could proceed without the permit and, as the Corps
notes, is currently proceeding without the permit. Additionally,
the project is not financed by federal money and state and local,
not federal, regulations control the overall design. See
California Trout, 58 F.3d at 473; Enos, 769 F.2d at 1371-72
(finding no federal action for purposes of NEPA where non-
federal portion of a project received no federal funding and was
not subject to federal supervision); Alaska v. Andrus, 591 F.2d
537, 541 (9th Cir.1979) ("[w]here federal funding is not
present, [we have] generally been unwilling to impose the
23a
NEPA requirement" of filing an EIS). The project has also been
subjected to extensive state environmental review. See
Sylvester 11, 884 F.2d at 401 ("We, finally, draw comfort from
the fact that ordinary notions of efficiency suggest a federal
environmental review should not duplicate competently
performed state environmental analyses").
The fill of the eight acres of wetlands for the purpose
of creating the freshwater marsh could well be undertaken
without the overall project, as well. The freshwater marsh sub-
project has value in and of itself. Moreover, although there may
be no reason to fill the remaining eight acres of wetlands if the
rest of Phase | is not to be built, the regulations make clear that
federal jurisdiction over this small segment of the development
is not "control and responsibility" over the rest of the project
sufficient to federalize the entire project. See 33 C.F.R. pt. 325
app. B § 7(b)(2) (providing that parts of a project beyond Corps
jurisdiction must be considered "Where the environmental
consequences of the larger project are essentially products of
the Corps permit action"); id. § 7(b)(2)(ii) (identifying one
factor in determining "control and responsibility" is the "extent
to which the entire project will be within Corps jurisdiction");
id.§ 7(b)(3) (providing as an example that "if an applicant seeks
a... permit to fill waters or wetlands on which other
construction or work is proposed, the control and responsibility
of the Corps, as well as its overall Federal involvement would
extend to the portions of the project to be located on the
permitted fill" but not to other portions unless "the regulated
activities, and those activities involving regulation, funding,
etc. by other Federal agencies, comprise a substantial portion of
the overall project"). Given the deference that the agency's
determination of its own jurisdiction is due, the Corps' decision
to limit its review to the specific activity requiring the permit
is not arbitrary or capricious.
24a
b. Segmentation of Project
The Council on Environmental Quality's (CEQ)
regulations implementing NEPA require that an agency
consider "connected actions" and "cumulative actions” within
a single EA or EIS. 40 C.F.R. § 1508.25. Although federal
agencies are assigned the primary task of defining the scope of
NEPA review and their determination is given "considerable
discretion," connected or cumulative actions must be
considered together to prevent an agency from "dividing a
project into multiple ‘actions,’ each of which individually has
an insignificant environmental impact, but which collectively
have a substantial impact." Thomas, 753 F.2d at 758.
The CEQ regulation provides that 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 large action and depend on the
larger action for their justification.
40 C.F.R. § 1508.25(a)(1). Cumulative actions are those "which
when viewed with other proposed actions have cumulatively
significant impacts." 40 C.F.R. § 1508.25(a)(2).
We use an "independent utility" test to determine
whether an agency is required to consider multiple actions in a
single NEPA review pursuant to the CEQ regulations. In
Thomas, we addressed the issue of whether NEPA required the
25a
Forest Service to consider in a single review process the
environmental impacts of the building of a road in a forest to
facilitate logging and the timber sales that would result from
that logging. We found that the logging operations and the
construction of the road were "connected actions" because "the
timber sales [could not] proceed without the road, and the road
would not be built but for the contemplated timber sales." 753
F.2d at 759. See also, Save the Yaak Comm. v. Block, 840 F.2d
714, 720 (9th Cir.1988).
Applying this same analysis, we have rejected claims
“that actions were connected when each of two projects would
have taken place with or without the other and thus had
‘independent utility.’ " Morongo Band of Mission Indians v.
FAA, 161 F.3d 569, 580 (9th Cir.1998); see also Northwest
Resource Information Center, Inc. v. National Marine Fisheries
Service, 56 F.3d 1060 (9th Cir.1995); Sylvester, 884 F.2d at
400. In Morongo Band, we found that the FAA did not
improperly segment NEPA review of an airport's arrival
enhancement project (AEP) from review of a larger airport
expansion project, for which the FAA was preparing an EIS,
because each project had independent utility. 161 F.3d at 580.
We recognized that the expansion project would exacerbate the
problems being addressed by the AEP, but found that the AEP
was an independent action because it was designed primarily to
deal with existing problems and therefore was not connected to
any future expansion project. /d
In this case, the Corps asserts that the three phases of
the project are not connected actions because each have
independent utility and that it therefore was not required to
consider the environmental impacts attributable to the three
different phases in a single NEPA analysis. The record supports
the Corps' conclusion. Phase I of the development includes the
26a
development of approximately 600 acres that comprise 5
million square feet of office space, 13,000 dwelling units and
hotel and retail space. The utility of this part of the project does
not depend upon the completion of the later phases of the
project. It would not be unwise or irrational to undertake the
building of Phase I even if it was determined that the later
phases could not be constructed. Trout Unlimited v. Morton,
509 F.2d 1276, 1285 (9th Cir. 1974) (finding that an EIS must
cover a whole project when "[t]he dependency is such that it
would be irrational, or at least unwise, to undertake the first
phase if subsequent phases were not also undertaken").
Relying on Blue Mountains, WAN avers that, under
the applicable regulations, the Corps should have considered
the three phases of the project together as "cumulative actions."
Blue Mountains involved a challenge to the Forest Service's
determination that a single timber salvage sale would not have
a significant environmental impact. 161 F.3d 1208 (9th Cir.
1998). We found that the CEQ regulations required the Forest
Service to consider five related timber sales in a single NEPA
analysis. /d. at 1214-16. Acknowledging that "NEPA does not
require the government to do the impractical" and that the
agency's determination of the scope of an EIS is entitled to
deference, we nevertheless overturned the Forest Service's
decision to analyze the sales separately. /d. at 1215 (internal
quotation marks omitted). We found that the five sales were
cumulative actions because they were part of a single project,
were announced simultaneously to a coalition of logging
companies, and were reasonably foreseeable. Jd.
The instant case is distinguishable from Blue
Mountains. Finding that the Corps was required in 1991-92 to
have analyzed the environmental impacts of the three phases in
a single EA or EIS would require the government to do the
27a
impractical. When MTP-PV applied for a permit for Phase I,
many of the details and planning decisions regarding Phases II
and III had not yet been completed. In fact, Phases II and III
have still not received the required authorizations to begin
development from various state and federal agencies and the
local government. Additionally, unlike the situation in Blue
Mountains, the Corps did include in the EA an evaluation of the
environmental impacts of the whole project. Neither the CEQ
regulations nor our precedent support the conclusion that the
Corps was required to consider the three phases together as
cumulative actions.
3. Corps' Finding of No Significant Impact
("FONSI")
Under NEPA, if an agency determines in an EA that
the federal action will not significantly affect the environment,
it may issue a FONSI. Northwest Resource Info. Ctr., 56 F.3d
at 1064. "If the proposed action will have a significant impact,
the agency must prepare an EIS which addresses in detail the
purpose and need for the action, the environmental impacts of
the action, and alternatives to the action." Jd.; 40 C.F.R. §§
1501.4 and 1502.10. CEQ's regulations require an agency to
consider the context and intensity of the environmental impacts
in making the determination as to the significance of the
impacts. 40 C.F.R. § 1508.27. The agency must consider, inter
alia, "[t}he degree to which the effects . . . are likely to be
highly controversial" and "[t]he degree to which the possible
effects . . . involve unique or unknown risks." 40 C.F.R.§
1508.27(b)(4), (b)(5).
a. Untested Nature of Freshwater System
The district court found that the Corps' decision not
28a
to issue an EIS was arbitrary and capricious because there were
substantial questions regarding whether the proposed
freshwater wetland system would adequately mitigate the loss
of the filled wetlands. "An agency must prepare an EIS if
‘substantial questions are raised as to whether a project. . . may
cause significant degradation of some human environmental
factor.’" Greenpeace Action, 14 F.3d at 1332 (citing LaFlamme
v. FERC, 852 F.2d 389, 397 (9th Cir.1988)). The district court
found the record replete with comments questioning the
feasibility of the wetland system and noting that the Corps'
conclusion that the system would result in an environmental
benefit was not based on scientific data. The district court
further found that the Corps largely ignored these comments
and that the Corps’ conclusion that the freshwater system would
result in an environmental benefit was not supported by
substantial evidence.
The district court's finding that there exist substantial
questions regarding the feasibility of the freshwater system
appears to be largely based on a mis-characterization of the
evidence found in the administrative record. The record does
contain many agency and public comments criticizing the
freshwater system. A majority of these comments, however, do
not question the feasibility of the freshwater system or indicate
that the system would have negative impacts on the
environment.
For example, to support its finding that both the FWS
and the EPA recognized that MTP-PV's proposal to build the
freshwater wetland system within the retention basin was not
feasible, the district court cited comment letters submitted by
the EPA and FWS. The letter from the EPA, however, does not
address the feasibility of the freshwater wetland system.
Rather, in its comments, the EPA requests that MTP-PV
29a
provide the following information:
A. Determination if the freshwater marsh
will receive water from the proposed on-
site water treatment facility and if so, the
quantity of water.[MTP-PV] should
provide an evaluation of the quantity and
quality of wildlife habitat the freshwater
marsh would provide if it received this
treated water and if treated water was not
used in the marsh.
B. Determination of the contaminants
which would enter the freshwater marsh if
surface run-off, remediated groundwater
and/or reclaimed wastewater were used.
[MTP-PV] should explain how the
contaminant and sediment loading in the
freshwater marsh would be managed. The
information provided should include the
frequency and location of any sediment
and vegetation removal that is expected to
be required, how this will affect the
quantity and quality of wildlife habitat,
and where the sediment will be disposed.
Letter from Harry Seraydarian, Director, Water Management
Division, EPA, to Colonel Charles S. Thomas, District
Engineer, Corps (February 6, 1991). Similarly, in the
referenced comment letter, FWS suggested that the plan for tise
freshwater system be revised to allow for urban runoff to be
diverted around the system, but it did not express any opinion
on the feasibility of the system.
30a
The record in this case also belies the district court's
finding that the Corps ignored the negative comments it
received and that the Corps lacked a substantial basis for the
scientific determination that the freshwater system is viable.
The commentators who expressed concern about the feasibility
of the freshwater system generally discussed the ability of the
system to serve the various purposes for which it was designed,
its ability to handle pollutants, and the quality and quantity of
the water entering the system. The record reveals that the Corps
considered each of these issues and relied on substantial
evidence in making its determination that the freshwater system
was feasible.
In reviewing the environmental impacts of the permit
activity, the Corps considered numerous reports, studies, and
comments which evaluated the feasibility of the freshwater
wetland system. A review of the administrative record
demonstrates that the Corps considered, inter alia, the
biological needs of the native habitat and wildlife of the region,
water quality issues related to the project, the drainage,
watershed characteristics, water levels of the area, and possible
flooding that may be associated with the freshwater system.
The Corps' conclusion that the construction of the freshwater
wetland system will result in a net environmental benefit was
based on relevant and substantial data.
We have held that when the record reveals that an
agency based a finding of no significant impact upon relevant
and substantial data, the fact that the record also contains
evidence supporting a different scientific opinion does not
render the agency's decision arbitrary and capricious.
Greenpeace Action, 14 F.3d at 1333; cf Foundation for North
Am. Wild Sheep v. United States Dep't of Agric., 681 F.2d 1172,
1178 (9th Cir.1982) (finding that an agency's failure to address
3la
"certain crucial factors, consideration of which was essential to
a truly informed decision whether or not to prepare an EIS,"
rendered its decision that no EIS was necessarily unreasonable).
"When specialists express conflicting views, an agency must
have discretion to rely on the reasonable opinions of its own
qualified experts even if, as an original matter, a court might
find contrary views more persuasive. " Marsh, 490 U.S. at 378,
109 S. Ct. 851; see also Friends of Endangered Species, Inc. v.
Janizen, 760 F.2d 976, 986 (9th Cir.1985) ("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").
Because a review of the record reveals that the Corps
took a hard look at the environmental consequences of allowing
MTP-PV to construct the freshwater wetlands system and the
Corps based its decision to issue a FONSI on an evaluation of
the relevant factors, the Corps' decision was not arbitrary and
capricious.
b. Mitigating Factors
Anagency's decision to forego issuing an EIS may be
justified by the presence of mitigating measures. Friends of
Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989,
993 (9th Cir. 1993). "If significant measures are taken to
‘Mitigate the project's effects, they need not completely
compensate for adverse environmental impacts." /d . (internal
quotations and citation omitted). In evaluating the sufficiency
of mitigation measures, we focus on whether the mitigation
measures constitute an adequate buffer against the negative
impacts that result from the authorized activity to render such
impacts so minor as to not warrant an EIS. Greenpeace Action,
32a
14 F.3d at 1332.
In the EA, the Corps found that the filling of the
wetlands would not significantly effect the environment and
that any negative impacts that would result would be mitigated
by the creation of the 51 acre freshwater system. At the time the
permit was issued, however, the complete mitigation plan had
yet to be set forth with specificity. In order to avoid substantial
delays, the Corps decided to issue the permit before all the
details of the mitigation plan had been finalized. In lieu of a
detailed plan, the Corps placed special conditions in the permit
requiring MTP-PV to develop the plans according to the
guidelines set forth in the special conditions. MTP-PV was
prevented from commencing any work on the project until the
plans were submitted to and approved by the Corps.
WAN contends that the Corps decision to issue the
FONSI was arbitrary and capricious because it was based on an
incomplete mitigation plan. WAN asserts that it is irrational to
allege that the Corps could have made a reasoned evaluation of
the effectiveness of the mitigation measures because it was
impossible to determine the precise nature of the mitigation
measures in the absence of a specific, finalized mitigation plan.
Thus, WAN concludes, the Corps’ finding that freshwater
system would sufficiently mitigate the whole project was
arbitrary and capricious.
WAN's analysis is flawed. WAN exaggerates the
deficiencies of the mitigation evidence found in the record. A
careful review of the record demonstrates that mitigation
measures were developed to a reasonable degree and had been
reviewed by the Corps and other federal agencies at the time the
permit issued. Moreover, the special conditions included in the
permit and reviewed by the various agencies were extremely
|
xa
33a
detailed. Thus, the Corps could determine the precise nature of
many of the mitigation measures at the time that it made the
permitting decision. See Robertson , 490 U.S. at 352, 109 S. Ct.
1835 ("[I]t would be inconsistent with NEPA's reliance on
procedural mechanisms -- as opposed to substantive, result-
based standards -- to demand the presence of a fully developed
plan that will mitigate environmental harm before an agency
can act.") WAN also exaggerates the need for mitigation here.
The record supports the Corps' finding in the EA that the
scattered wetlands to be filled pursuant to the permit are of a
highly degraded quality and that little wetland value would be
lost as a result of the Phase I filling activity. Due to the value of
the freshwater system, the Corps found that the development of
Phase I would increase the wetland values of the area. The
record supports these findings.
In order to issue a FONSI, the Corps only needed to
find that the mitigation measures would render any
environmental impact resulting from the permit activity
insignificant. The Corps did not act arbitrarily and capriciously
in determining that an EIS was not required for MTP-PV's
application to fill 16 acres of degraded wetland given the
mitigating value of the freshwater system.®
c. Public Controversy
WAN asserts that the controversy surrounding the
decision to build the freshwater wetland system required the
“The memorandum from the Corps’ former project manager to her
replacement, expressing her concern that the mitigation plans were not
further developed, does not undermine our conclusion that the mitigation
measures in the record were reasonably developed, that the special
conditions were detailed, and that the approval of the Corps’ District
Engineer based thereon was not arbitrary or Capricious.
34a
Corps to prepare an EIS. "The existence of a public controversy
over the effect of an agency action is one factor in determining
whether the agency should prepare [an EIS]. "Greenpeace
Action, 14 F.3d at 1333, 40 C.F.R. § 1508.27(b)(4). A federal
action is controversial if "a substantial dispute exists as to [its]
size, nature or effect." LaFlamme, 852 F.2d at 400-C1 (internal
quotation marks omitted). The existence of opposition to a use,
however, does not render an action controversial. /d. at 401.
A majority of the objections raised to the
development of the freshwater wetland system were premised
on an opinion that it would be more appropriate to use the area
as a saltwater marsh or that the geographic location of the
marsh should be altered. These types of objections can not
render a Corps' permitting decision controversial for NEPA
purposes because they do not pertain to the "size, nature, or
effect" of the development of the freshwater system. As was
noted above, however, a dispute as to the effect that the
freshwater system would have on the environment did exist.
During the two year review process, the Corps was able to
address these potential effects to the satisfaction of the other
federal resource agencies, for all of the agencies eventually
withdrew their objections to the issuance of the permit. See
Northwest Environmental Defense Center, 117 F.3d at 1536.
The Corps did not commit a clear error in judgment when it
determined that this action was not controversial for NEPA
purposes.
CONCLUSION
MTP-PV does not have a legally protectable interest
relating to WAN's NEPA claims and therefore the district court
did not err in denying MTP-PV's motion to intervene as of right
in regard to these claims. The district court erred, however, in
35a
finding that, in issuing the permit without preparing an EIS
considering the environmental consequences of building the
entire Playa Vista project, the Corps violated NEPA. The
Corps’ determination of the scope of the NEPA review and its
issuance of a FONSI was not arbitrary and capricious.
Accordingly, we reverse the district court's grant of summary
judgment and remand to vacate the injunction.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
36a
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WETLANDS ACTION NETWORK, a
California non-profit organization;
BALLONA WETLANDS LAND
TRUST, a California non-profit
organization,
Plaintiffs-Appellees,
VS.
UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the
United States; MICHAL R.
ROBINSON, in his capacity as
District Engineer of the United
States Army Corps of Engineers;
JOE N. BALLARD, in his capacity
as Chief Engineer of the United
States Army Corps of Engineers,
Defendants,
and
PLAYA CAPITAL COMPANY,
L.L.C., as successor-in-interest to
Maguire Thomas Partners-Playa Vista,
Defendant-Intervenor-
Appellant
WETLANDS ACTION NETWORK, a
California non-profit organization;
CALIFORNIA PUBLIC INTEREST
RESEARCH GROUP,
Plaintiffs-Appellants,
and
ee a a ee ee a a a
) No. 98-56242
) D.C. No. CV-96-
) 08407-RSWL
FILED
JAN 10 2001
Cathy A. Catterson
Clerk, U.S.
Court of Appeals
) No. 98-56474
)
D.C. No. CV
) 96-08407-RSWL
)
)
)
)
37a
BALLONA WETLANDS LAND
TRUST, a California non-profit
organization, jf
Plaintiff,
VS.
UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the
United States; MICHAL R.
ROBINSON, in his capacity as
District Engineer of the United
States Army Corps of Engineers;
JOE N. BALLARD, in his capacity
as Chief Engineer of the United
States Army Corps of Engineers,
Defendants,
and
PLAYA CAPITAL COMPANY,
L.L.C., as successor-in-interest to
Maguire Thomas Partners-PlayaVista,
Defendant-Intervenor
Appellee.
WETLANDS ACTION NETWORK, a
California non-profit organization;
BALLONA WETLANDS LAND
TRUST, a California non-profit
organization, CALIFORNIA PUBLIC
INTEREST RESEARCH GROUP,
Plainuffs-Appellants,
VS
UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the United
ita a ht Mi th i ol a ge en es
No. 98-56672
D.C. No. CV-96-
08407-RSWL
38a
States; JOE N. BALLARD, in his )
capacity as Chief Engineer of the )
United States Army Corps of )
Engineers; ROBERT L. DAVIS, Col... )
)
Defendants-Appellants, )-
)
Before: BRUNETTI, WARDLAW, Circuit Judges, and
SEDWICK~ District Judge.
Judge Wardlaw has voted to deny appellees’ petition for
rehearing and to deny the petition for rehearing en banc. Judges
Brunetti and Sedwick have voted to deny the petition for
rehearing and recommend denial of the petition for rehearing en
banc.
The full court has been advised of the petition for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing
en banc are denied.
~The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation
39a
UNPUBLISHED OPINION
OF THE DISTRICT COURT
Entered Clerk, U.S. District Court
Jun 26 1998
Central District of California by Deputy
Filed Clerk, U.S. District Court
Jun 25 1998
Central District of California by Deputy
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WETLANDS ACTION NETWORK,
a California non-profit organization;
BALLONA WETLANDS LAND TRUST,
a California non-profit organization;
CALIFORNIA PUBLIC INTEREST
RESEARCH GROUP, a California
non-profit organization,
) CV 96-8407
) RSWL (AJWx)
)
)
ORDER GRANTING IN
) PART AND DENYING IN
)
)
PART PLAINTIFFS’
MOTION TO AUGMENT
THE ADMINISTRATIVE
Plaintiffs, PLAINTIFFS’ MOTION
v. FOR SUMMARY
JUDGMENT, AND
UNITED STATES ARMY CORPS OF DENYING
ENGINEERS, an agency of the United DEFENDANTS’
States; LT. GENERAL JOE N. MOTION FOR
BALLARD, in his capacity as Chief
Engineer of the United States Army
Corps of Engineers; and COL.
MICHAL R. ROBINSON. in his
capacity as District Engineer of the
United States Corps of Engineers,
Defendants
MAGUIRE THOMAS PARTNERS
PLAYA VISTA.
Intervenor “
SUMMARY JUDGMENT
THIS CONSTITUTES
NOTICE OF ENTRY
AS REQUIRED BY
FRCP, RULE 77(d)
40a
Introduction
This action arises out of Plaintiffs’ Wetlands Action
Network, Ballona Wetlands Land Trust, and California Public
Interest Research Group (“Plaintiffs”) allegations that the Army
Corps of Engineers (the “Corps”) and its supervisory officers
(collectively “Defendants”) failed to fulfill their legal
obligations under the National Environmental Policy Act
(“NEPA”) and the Clean Water Act (“CWA”) by granting a fill
permit to Maguire Thomas Partners-Playa Vista (*“MTP-PV”}”’
1 under section 404 of the CWA. (Permit #90-426-EV,
hereinafter “the Permit”.)
Currently before the Court are three motions: Plaintiffs’
Motion to Augment the Administrative Record, and the Parties’
Cross-Motions for Summary Judgment as to the remaining
NEPA claim. These motions were scheduled for oral argument
on February 23, 1998, but were removed from the Court's
calendar for disposition based on the papers filed pursuant to
Federal Rule of Civil Procedure 78. Now, after carefully
reviewing the papers submitted, the Court GRANTS in part,
and DENIES in part, Plaintiffs’ Motion to Augment the
Administrative Record. The Court further GRANTS Plaintiffs’
Motion for Summary Judgment and DENIES Defendants’
Motion tor Summary Judgment.
- Playa Capital Company, L.L.C. ts the successor-in-interest to MTP-PV,
and is the owner of the property upon which the Playa Vista project is
proposes. For the purposes of this Order, however, the Court will refer to
the developer as MTP-PV because it was the developer at the time of the
Permit process
In August, 1990, MTP-PV applied to Defendants for a
permit to fill approximately 16.1 acres of federally-delineated
wetlands pursuant to a major development project in the
Ballona Wetlands area of Los Angeles.* The Playa Vista
property is a parcel of approximately 1004 acres in Los
Angeles, bounded by Marina del Rey, the Marina Freeway, the
San Diego Freeway, and the Los Angeles International Airport.
The mixed-use development, known as Playa Vista, is to
include residential areas, a marina, and numerous commercial
developments, including hotels, retail establishments, and a
movie studio.
Prior to issuing the Permit, the Corps was required to
* MTP-PV divided the Playa Vista property into four qudrants: Areas A,
B, C, and D. The Playa Vista project itself is then divided into three phases.
The first phase involves, in part, the construction of 80,000 square feet of
office space and 450 residential units in Areas B, C, and D of the Playa
Vista property, which contain 17 isolated patches of allegedly degraded
wetlands. The second phase involves the restoration of a 230-acre salt
marsh system within Area B. The third phase involves the development of
a marina in Area A and associated commercial and residential space and,
possibly, improvements to the Ballona Channel.
The Permit at issue in this case covers only the filling in of the
federally delineated wetlands proposed as part of the construction of the
Playa Vista project. This Phase | permit authorized: fill of approximately
16.1 acres of wetlands and the establishment of mitigation credits for total
dredge/fill of approximately 28.1 acres of delineated wetlands. In addition
to the 16 acres of wetlands affected in this permit, these credits were to be
granted in advance for the 9.8 acres of wetlands proposed to become the
saltwater marina development, and 2.3 acres for the relocation of Culver
Boulevard.
42a
analyze the environmental effects of each stage's permitted
activity, pursuant to NEPA. If they determined that the
permitted activity would have a “significant impact” on the
environment, they were required to issue a detailed
Environmental Impact Statement (“E!S”) before granting a
permit. If no significant environmental impacts were found,
Defendants were required to issue a Finding of No Significant
Impact (“FONSI”) and an Environmental Assessment (“EA”’)
which is much less detailed than an EIS.
On July 1, 1992, Defendants issued the Permit to MTP-
PV, allowing it to begin the first phase of filling operations.
Defendants did not issue an EIS, but instead issued a FONSI
and an EA pertaining to the Permit. Later, Defendants required
that both the second and third stages of the Playa Vista project
be preceded by an EIS.
Plaintiffs filed their Complaint with the Court on
December 3, 1996, followed by a First Amended Complaint on
February 19, 1997. Defendants filed their Answer on March
31, 1997, and filed a copy of the administrative record on May
1, 1997. In an August 20, 1997, Order, the Court allowed
MTP-PV leave to intervene permissively in the portion of the
NEPA proceedings addressing injunctive relief, and as of right
in the entirety of the CWA claim. The Court subsequently
granted summary adjudication in favor of Defendants on the
CWA claim by an order dated November 14, 1997.
Plaintiffs originally brought five claims, the first four
alleging NEPA violations, and the fifth alleging a violation of
the CWA. Plaintiffs claim that Defendants failed to follow their
statutory mandate under NEPA by not issuing an EIS before
granting the first permit to MTP-PV. Plaintiffs request
injunctive relief to revoke the Permit and to cease all
construction at the site until an EIS is issued.
43a
Discussio
A. Plaintiffs’ Motion to Augment the Administrative
Record
In connection with their motion for summary judgment,
Plaintiffs move to augment the administrative record with the
declarations of Drs. Joy Zedler and Rudi Mattoni, filed on
October 17, 1997. Plaintiffs also move to augment the record
with portions of various declarations submitted by MTP-PV
(intervenor) and Friends of Ballona Wetlands (“FBW,”
applicants for intervention). Finally, Plaintiffs move the Court
to compel the Corps to produce four witnesses for examination
to augment the administrative record with their testimony about
the period of time between July, 1992, and April, 1993.2
1. Legal Standard: Judicial Review and
Augmenting the Administrative Record
A court's review of an agency decision usually “focuses
on the administrative record in existence at the time of the
decision and does not encompass any part of the record that is
made initially in the reviewing court.” Public Util. Comm’n of
State of Calif. v. F.E.R.C., 100 F.3d 1443, 1450 (9th Cir. 1996)
(citing Camp v. Pitts, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244
(1973); Nevada Land Action Ass'n v. United States Forest
~ In previous Orders, the Court stated that the exceptions to the rule
limiting the Court’s review to only the administrative record were “not
applicable here.” This statement did not mean that no exceptions did in fact
exist, only that neither party in the previous Orders properly moved to have
the Court expand its review beyond the administrative record.
44a
Serv., 8 F.3d 713, 718 (8th Cir. 1993)); see aiso Friends of the
Earth v. Hintz, 800 F.2d 822, 829 (9th cir. 1986); 5 U.S.C. §
706 (the Administrative Procedures Act, (*APA”)). A court
may expand the scope of its review beyond the record,
however, if to do so is needed to “explain agency decisions.”
Id. (citing Animal Defense Council v. Hodel, 840 F.2d 1432,
1436 (9th Cir. 1988), corrected, 867 F.2d 1244 (9th Cir. 1989)).
The Ninth Circuit has allowed materials outside the record may
be admitted:
(1) if necessary to determine 'whether the
agency has considered all relevant factors and
has explained its decision,’ (2) ‘when the
agency has relied on documents not in the
record,’ or (3) 'when supplementing the record
is necessary to explain technical terms or
complex subject matter.’
Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697,
703-04 (9th Cir. 1996) (Quoting Friends of the Payette v.
Horseshoe Bend Hydrooelectric Co., 988 F.2d 989, 997 (9th
Cir. 1993)). Finally, “[e]xtra-record documents may also be
admitted ‘when plaintiffs make a showing of agency bad faith.”
Public Until. Comm'n, 100 F.3d at 1450 (quoting National
Audubon Soc. v. United States Forest Serv. 46 F.3d 1437, 1447
n.9 (9th Cir. 1993)).
2 Plaintiffs’ Motion to Augment the
Administrative Record
a) Doctors Mattoni's and Zedler's
Declarations
Dr. Mattoni is a professor of conservation biology with
a concentration in ecology and genetics. Dr. Zedler is a
professor of biology and director of the Pacific Estuarine
45a
Research Laboratory at San Diego State University. Their
declarations allegedly explain technical terms at issue and put
the scientific debates into context. Further, Dr. Mattoni’s
declaration allegedly contains evidence that should have been
in, but was not clearly reflected in, the administrative record,
except in the most cursory, cryptic manner.
Defendants argue that to allow Plaintiffs to now submit
these declarations would essentially “forgive” Plaintiffs for
failing to submit the declarations of these experts during the
Corps' NEPA process and before the agency rendered its
decision. Defendantts claim that there are no “technical terms,”
“scientific debates,” “widespread, strongly-held, and long-
standing concerns,” or “cursory, cryptic” issues relating to the
Corps’ decision to issue the permit that the court would be
unable to understand based on a review of the administrative
record.*
* Defendants argue thatt if “the Court were to need technical assistance or
further explanation of the Corps’ decision or the record, the Court should
seek such assistance and explanation from the Corps, not plaintiffs.” (Opp.
at 19) (emphasis added)..
“When there is. a need to supplement the record to explain agency
action, the preferred procedure, is to remand to the agency for its
amplification ....” Pubslic Power Council v. Johnson, 674 F.2d 791, 794
(9th Cir. 1982) (citing AASSARCO, Inc. V. EPA, 616 F.2d 1153, 1160 (9th
Cir. 1980); Appalachian: Power Co. v. EPA, 477 F.2d 495, 507 (4th Cir.
1973)). The court may, |however, admit certain testimony into the judicial
proceeding or provide lirmited discovery “when serious gaps would frustrate
challenges to the agencyy’s action.” Id. (citations omitted). Moreover, a
court need not remand tto the agency when other exceptions to limiting
review to the administraative record apply, such as when an agency has
relied on documents or materials not included in the record, or to permit
explanation or clarificaticon of technical terms or subject matter involved in
the agency action being rreviewed. Id.; see also Hintz, 800 F.2d at 829.
46a
The mere fact that controversy surrounded the Permit
process, however, does not mean that the record should be
augmented. Plaintiffs’ other offered reasons to augment the
administrative record are also unpersuasive. For example,
Plaintiffs cite to no technical terms that need to be further
elaborated, upon for the Court's review, or which the Court
could not understand, simply by referring to the administrative
record. Furthermore, the administrative record adequately
explains the concerns as to this project, expressed by
professionals, the relevant reviewing agencies, and the public.
The Court will consider these declarations, however, to the
extent they assist the Court in determining whether the agency
considered relevant factors or explained its decision adequately.
See Northwest Envtl. Defense Ctr. v. Wood, 947 F. Supp. 1371,
1376 (D. Or. 1996) (citing Greenpeace Action v. Franklin, 14
F.3d 1324, 1334 n.12 (9th Cir. 1992)).
b) Robert Miller, Thomas S. Ricci, and
Howard F. Towner Declarations
The declarations of Robert Miller (MTP’s Vice
President), Thomas S. Ricci (Playa Capital Company's Vice
President), and Howard F. Towner (FBW's Biological Expert)
were submitted earlier in this litigation in opposition to
Plaintiffs’ Motion for a Preliminary Injunction, and Plaintiffs
now move to admit them as part of the record. These
declarations allegedly contain admissions that are central to
Plaintiffs’ NEPA claims. Plaintiffs claim that they demonstrate
that: (1) the freshwater mitigation system and the upland
mixed-use development of Playa Vista are signifi
in terms of NEPA requirements; and (2) enormous controversy
within the scientific community exists as to the adequacy,
design, and likelihood of success of the “freshwater system.”
Defendants argue that these declarations should not be
47a
admitted because Plaintiffs have not presented a legally
sufficient basis for admitting this extra-record evidence in that
they have not satisfied the exceptions to judicial review listed
above. Further, Defendants argue that Plaintiffs are trying to
use these declarations in an inappropriate and impermissible
manner because FBW and MITP-PV_ submitted these
declarations in opposition to Plaintiffs’ Motion for a
Preliminary Injunction. Defendants claim, however, that they
are not for Plaintiffs’ use to attack the integrity of the Corps’
NEPA and permit evaluation process or its decision to issue the
permit.
: Defendants are correct in that Plaintiffs do not try to fit
these declarations into one of the exceptions for augmenting the
administrative record, but rather to substantively attack the
Corps' decision. However, to the extent the Court finds that
they help explain agency action or whether the Corps
considered relevant factors, the Court will consider them.
Cc) Production of Witnesses by the Corps
Plaintiffs ask that the Corps be ordered to produce four
witnesses - Liz Varnhagen, Chery! Conel, David Castanon, and
Diane Noda - to testify about alleged irregularities in the
administrative record and significant gaps in the record between
July, 1992, and April, 1993. These witnesses were involved
with the Permit's issuance. Because of the alleged lack of
documentation in the record, Plaintiffs request that the Corps be
ordered to augment the record through testimony garnered at an
evidentiary hearing of those Corps officials.~
~ The specific irregularities in the record to which Plaintiffs refer are: (1)
the lack of administrative record for the time period between July, 1992,
when the Permit was first issued, and April, 1993, when it was finalized
(hereinafter the “gap in the record issue”); and (2) the fact that the Special
48a
On July 1, 1992, Colonel Thomas, the Corps’ District
Engineer, signed and sent out the section 404 Permit to
MTP-PV on his last day in office. (8 AR 3713-24.) This
document is referred to in the administrative record as a “draft”
permit. The letter accompanying this permit required that the
permit be signed and returned, along with a one hundred dollar
check, to the Corps within thirty days or the request for the
proposed work would be withdrawn. (8 AR 3712.)
In addition to signing the Permit in July, 1992, Colonel
Thomas and other Corps officials certified the EA and FONSI
for phase | of the Playa Vista project. (8 AR 3725.) Contained
within the EA was a list of Special Conditions which,
presumably, should have been the same as those accompanying
the Permit signed on the same day. (8 AR 3782.) The Special
Conditions contained in the EA differ, however, from those in
the Permit.2 Further, because the final permit was not signed
Conditions in the EA and the Permit differed when they were first issued
in July, 1992 (hereinafter the “attached documents language issue”).
- Section 2(c) of the EA required:
During Year | the planting density for each plant community shall
be at least 80% of that proposed in the schematic revegetation plan
provided in the attached revegetation plan that accompanies this
permit, as specified by Special Condition 2.b., above
(8 AR 3784) (emphasis added).
However, in the final version of the Permit, section 2c) states:
During Year | the planting density for each plant comnunity will
be at least 80% of that proposed in the revegetaton plan as
specified by Special Condition 2.b., above. . . .
(8 AR 3719.)
49a
and returned until April 16, 1993, there is a nine month gap in
the administrative record, according to Plaintiffs. (8 AR 3835.)
To explain the alleged gap in the record and the attached
documents language issue, Defendants offer the declarations of
two Corps’ officials: David J. Castanon (“Castanon”) and Liz
Section 5(c) of the EA states:
The permittee shall submit to the Corps for review a summary
monitoring report within 6 months of the end of the fifth complete
year following the completion of the construction of each
component of the wetlands system. Such report shall contain the
following information:
An evaluation of water quality parameters as measured
by seasonal water quality sampling and water chemistry
analysis for which the required sampling regimes and key
water quality parameters are described in the water
quality monitoring section of the attached mitigation
document accompanying this permit as prescribed in 2.c.
above.
(8 AR 3786) (emphasis added).
Yet, Section 5(c) of the Permit states:
The permittee shall submit to the Corps for review a summary
monitoring report within 6 months of the end of the fifth complete
year following the initiation of the construction of the wetland
systems. Such report shall contain the following information:
An evaluation of water quality parameters as measured
by seasonal water quality sampling and water chemistry
analysis for which the required sampling regimes and key
water quality parameters are described in the water
quality monitoring section as described in 2.c, above.
(8 AR 3722.)
50a
Varnhagen (“Varnhagen”). Defendants claim that these
declarations explain the alleged irregularities in the record and
obviate the need to augment the record.
i. The Gap in the Record Issue
Defendants offer Castanon’s declaration to explain the
alleged gap in the record issue. As Chief of the North Coast
Section of the Regulatory Branch of the Corps, he participated
in the Corps’ administrative decision-making process for the
Permit. He also directed the compilation of the agency
documents which comprise the administrative record for the
Corps’ decision to issue the Permit.
Castanon states that the July 1, 1992, letter
accompanying the issuance of the Permit referred to the Permit
as “draft” because the Corps does not consider the permits final
until they are signed by both the Corps and the permittees. He
states that this “draft” reference did not mean that the Corps
was intending to make further significant changes to the permit
without public knowledge and input. He also states that the
30-day deadline established in the letter was discretionary, not
required by law, and merely to ensure the quick turn-around of
permits.
As to why the Permit was not signed until April, 1993,
Castanon states that on July 10, 1992, MTP informed the Corps
in writing that there were errors in the Permit Special
Conditions. (8 AR 3791.) He blames this error on the fact
that Varnhagen had prepared several different iterations of the
Permit Special Conditions on a floppy disk, and in her haste to
” These errors related to Special Conditions #1 and #6(a). (8 AR 3791-92.)
This alleged error in the Permit’s Special Conditions differs from the error
Plaintiffs discuss, i.e., the attached documents language problem.
Sla
assemble the necessary documents for approval, she simply
selected the wrong iteratior of the Special Conditions for
inclusion with the Permit that the Corps sent to MTP.
Varnhagen, and then her successor Noda, both worked
on correcting the Special Conditions in the Permit, Castanon
claims, but the task eventually fell on him. From July, 1992, to
April, 1993, then, these three individuals, at different times,
allegedly worked with MTP to correct the Permit's Special
Conditions. However, Defendants cite to no evidence in the
record evidencing these transactions.
Castanon claims to have completed correcting the
Special Conditions in April, 1993. MTP then allegedly
incorporated the corrected Special Conditions, signed the
Permit, and sent the signed Permit package to the Corps. When
Castanon received the package, he claims to have replaced the
uncorrected version of the Special Conditions that had been in
the Permit file, (dated July 1, 1992), with the corrected version
of the Special Conditions (dated April 16, 1993). Defendants
claim that this substitution and disposal created the “gap” in the
record to which Plaintiffs refer.
Castanon states that he disposed of the copy of the older
conditions because he wanted to avoid confusion from having
the corrected and uncorrected iterations of the permit Special
Conditions together in the permit file. Moreover, Defendants
argue that a side-by-side comparison of the uncorrected and the
corrected iterations of the Permit Special Conditions reveals
that the word changes between the two iterations are minor,
non-substantive differences. The Corps argues that had it made
substantive modifications to the Special Conditions, it would
have documented the modifications and re-submitted the permit
for public review and comment, as required by the Corps'
regulations. Castanon further states that he did not correct or
S2a
otherwise disturb the language of the EA, including the Special
Conditions.
Plaintiffs claim that Castanon’s declaration is
unpersuasive. Castanon certified the accuracy and completeness
of the administrative record on April 29, 1997. Yet in his
certification, he fails to refer to the fact that he “threw away the
uncorrected version [of the Special Conditions] because he
thought that the uncorrected version was no longer needed.”
(See Castanon Decl. § 22.) The Court finds that the Castanon
declaration adequately explains the gap in the record. Plaintiffs
do not challenge the contention that the changes allegedly made
to the Permit itself during this time are non-substantive, and the
Corps’ failure to properly keep paperwork as to insignificant
changes does not warrant the augmentation of the
administrative record through testimony.
ii. The Attached Documents Language
Issue
Plaintiffs claim that the EA which the Corps issued with
the Permit relied on attached documents which did not exist
when the EA was certified. Defendants submit Varnhagen's
declaration to explain the “attached documents” language
problem. Allegedly, the conditions outlined in the EA differ
from the Permit's conditions because Varnhagen made
inadvertent mistakes as to the “attached” mitigation documents
‘language, in her “rush” to prepare and finalize the permit and
associated documentation, including the EA, for the approval
and signature of the District Engineer on his last day in office.
(Opp. at 23.) Specifically, Varnhagen claims that Special
Conditions 2.c and 5.c in the EA issued with the Permit in July,
1992, should not have referred to any “attached documents”
whatsoever. She states that the Corps had intended, during the
permit evaluation, to have the mitigation documents attached to
S3a
the permit. (Varnhagen Decl. 410.) However. Varnhagen claims
that the Corps changed this intention sometime before the
permit was issued in July, 1992. She does not know when this
decision was made, except that she presumes that it must have
been before June 5, 1992, the date of the Corps’ response, (8
AR 3691), to the FWS' comment letter, (8 AR 3683), on the
Corps’ second Notice of Intent to issue the permit® (7 AR
3718-24.) Varnhagen believes she must have used a version of
the Special Conditions for the EA that had been superceded by
subsequent language modifications prior to the Corps’ decision
to issue the Permit. She claims to have had several versions of
the Special Conditions on a floppy disk because there were
numerous modifications to the Special Conditions’ language
during the permit evaluation. (Varnhagen Decl. 410.)
Varnhagen's current declaration conflicts with a
memorandum she wrote in November, 1992. to Noda, her
successor, as to the language discrepancies in the EA and the
Permit issued in July, 1992. (See NOL at Tab 6.) Varnhagen,
the project manager for Playa Vista at the Corps, wrote the
1992 memorandum at least four months after the Permit was-
signed. Plaintiffs claim that it contains certain admissions with
respect to deficiencies with the Permit and process. For
example, in 1992, Varnhagen wrote that in the list of conditions
to the Permit “there are two places which reference attached
documents” to the permit. These attached documents do not
exist yet and that is essentially the problem.” (8 AR 3826.) If
she had in fact merely selected the wrong copy of the EA from
her floppy disk, as she now claims many years after the fact, it
is unclear why she did not simply state this in her 1992, letter
* In their response to the Corps’ Second Notice, FWS states its concern
that the attached mitigation documents have not been submitted or
reviewed. In response, the Corps indicates that it intends to issue the Permit
without requiring that these documents be attached.
S4a
to Noda. In fact, at one point she discusses how to reconcile the
differences and suggests merely deleting the references in 5.c
and 2.c to “attached” mitigation documents. (8 AR 3828.)
However, she does not suggest this deletion because of her
inadvertence in selecting the incorrect EA. Rather, she thought
this “would be the simplest course of action and the
applicant/permittee would be immensely grateful.” (8 AR
3828.) She even suggests the possibility of attaching a proposed
revegetation plan that was included in the permit application to
be included with the permit “as though it has been accepted by
the Corps preliminarily. Or we could circulate it to the
agencies and ask for their comments - all before the permit ts
finalized. (That might not be trivial and consume a lot of
time).” (8 AR 3828.) Clearly, it would have been simpler for
Varnhagen to have admitted her selection of the wrong EA
instead of suggesting the myriad of ways to correct the failure
to have the “attached documents language” in the issued
Permit.
Further, Plaintiffs argue that because the EA references
attached materials that were, in fact, never attached, it is
reasonable to assume either that the Corps officials relied on
documents that were never in the record, or that they assumed
that these documents would exist when they issued the FONSI.
Varnhagen’s memorandum, Plaintiffs argue, points to the latter.
Plaintiffs claim that if this is correct, then it lends considerable
weight to Plaintiffs, contention that the decision not to prepare
an EJS was arbitrary and capricious because the EA did not
consider the significant impacts of the “freshwater system.”
Regardless, Plaintiffs claim that the lack of clarity with regard
to the “attached” documents warrants explanation on the
record.
Castanon attacks the importance of the November 2,
1992, Varnhagen memorandum, claiming that it merely reflects
55a
Varnhagen's personal opinions, and not the official position of
the Corps regarding the Permit. (Castanon Decl. at 15.) These
inadvertent mistakes, the Corps argues, do not rise to the level
of bad faith or improper behavior by the Corps. Moreover,
Castanon states that the Corps' decision to allow MTP to
develop the comprehensive mitigation plan after issuance of the
permit but before the commencement of construction is set
forth in the decision document, the final permit conditions, and
the District Engineer's June 5, 1992, letter. (See 8 AR 3780-24,
3693-94 (June 5, 1992, letter).)?
Plaintiffs argue that the Castanon and Varnhagen
declarations are post-hoc rationalizations and should not be
received. Plaintiffs argue that these are one-sided declarations
that afford Plaintiffs no opportunity to interrogate the relevant
witnesses in order to uncover the truth. Plaintiffs want their
actual testimony, and the opportunity to cross examine them.
The Court finds that the Corps and resources agencies
knew when the Corps issued the Permit that the attached
documents referenced in the EA would not be attached. The
position matrix prepared by the Corps (7 AR 3365),
Varnhagen's memorandum to Noda, the F WS' response letter to
the Corps’ Notice of Intent to Issue the Permit stating that the
resources agencies had not reviewed or approved the mitigation
and monitoring documents, (8 AR 3683), and the Corps'
response to it (8 AR 3691), all indicate that the Corps and
resource agencies were aware that the Permit was being issued
without the referenced attached mitigation documents. How
the Corps made the decision to not require these mitigation
documents, and how it issued a FONSI without them, is more
~ The fact that it is “allowed” in these documents does not explain how or
why the Corps made this decision or how it issued a FONSI without
reviewing these documents.
56a
appropriately discussed below in the Court's discussion of
Plaintiffs’ Motion for Summary Judgment, as it speaks to the
arbitrary and capricious manner in which this decision was
made. Finally, because Castanon’s and Varghagen’s
declarations shall be admitted to explain agency action and
because the administrative record otherwise allows the Court to
review the Corps’ decision to issue the Permit, further
examination of the Corps’ witnesses is not justified.
d) Plaintiff's Purported Evidence to
Support a “Strong Showing” of
Agency Bad Faith
Plaintiffs claim that the administrative record should be
augmented because the agency acted in bad faith. If there is a
“strong showing” of agency bad faith, the Court may accept
new evidence in making its decision. Environment Now! v.
The Court recognizes that “[a]gency documents prepared during and in
response to litigation are generally excluded from [review of agency
action].” Kunaknana v. Clark, 742 F.2d 1145, 1149 (9th Cir, 1984) (Citing
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20, 91
S. Ct. 814, 825 (1971); ASARCO, Inc. v. United States Env. Protection
Agency, 616 F.2d 1153, 1158-61 (9th Cir. 1980)). However, exceptions to
this rule exist. For example, a district court may consider information
outside the administrative record if used “as ‘background information’ and
for ‘ascertaining whether the agency considered all the relevant factors or-
fully explicated its course of conduct or grounds for decision.’” Id.
(quoting ASARCO, 6i6 F.2d at 1160). Thus, “[c]onsideration of the
evidence to determine the correctness or wisdom of the agency’s decision
is not permitted.” Id, at 1160. The Court is not to undertake its own inquiry
in to the merits of the agency action. Id. However, the Court may examine
materials that explain the original record as long as they contain no new
rationalizations, i.e., they do not present new reasons post-litigation to
— the agency’s decision. Id. at 1159; see also Association of Pac.
Fisheries v. Envtl. Protection Agency, 615 F.2d 794, 811-12 (9th Cir.
1980).
57a
Espy, 877 F. Supp. 1397, 1403 (E.D. Cal. 1994) (citing Hodel,
840 F.2d at 1437). As evidence, Plaintiffs notes that Colonel
Thomas signed and sent the Permit on his last day, and
reference a note by Cheryl Conel dated July 22, 1996, on a copy
of the Corps, July 1, 1992, permit transmittal letter to MTP-PV.
Plaintiffs also state that the Corps “took at face value and
without independent review numerous reports and documents
provided by MTP.” (Mot. at 10.) This evidence does not lead
the Court to conclude that the agency acted in bad faith and
thus does not justify the augmentation of the administrative
record. In particular, Plaintiff fails to explain its reference to
Ms. Conel’s note, which was written post-decision and thus not
part of the administrative record. Moreover, there is nothing
inherently illegal about Colonel Thomas’ signing the Permit on
his last day in office.
B. Plaintiffs’ and Defendants’ Cross Motions for
Summary Judgment
Both “Parties have moved for summary judgment on
Plaintiffs’ NEPA claim. Finding no need to hold an
evidentiary hearing or to otherwise allow augmentation of the
record, the Court may now decide whether Summary Judgment
should be granted.
Plaintiffs argue that the Corps’ failure to prepare an EIS
to analyze and disclose (1) the serious environmental impacts
of the entire Playa Vista development’ and, (2) the adverse
’ One of Plaintiffs’ main arguments is that because the filling of wetlands
for the purpose of constructing the mixed-use development is the “specific
activity requiring a [section 404] permit,” and because both are “links in the
same chain,” the overall impacts of the development should have been
evaluated in an EIS. The decision not to prepare an EIS, therefore, was
arbitrary, capricious and not in accordance with NEPA. (Pitf. Mot. at 27.)
58a
impacts of the “freshwater riparian system” was arbitrary,
capricious and not in accordance with law.” Defendants also
move for summary judgment, claiming that it properly
determined that it did not need to prepare an EIS before issuing
the Permit.
1. Legal Standard: Summary Judgment
Summary Judgment is appropriately granted for a
moving party “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). The substantive law
determines which facts are material. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986).
A dispute about a material fact is “genuine” “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Id, In ruling on a motion for summary
judgment, the Court’s function is not to weigh the evidence, but
only to determine if a genuine issue of material fact exists. Id.
+” Plaintiffs claim that the Corps took MTP’s assertions at face value
without any independent scientific inquiry, even though a “storm” of
protests by resource agencies, private biologists, and ecologists existed.
Plaintiffs further claim that both the EA and the response to the public
comments contained therein were drafted almost verbatim from documents
created by MTP’s lawyers and consultants. (See 6 AR 2957; 5 AR 2090-
2166, 2044.) This was improper because the Corps wis required to
“independently evaluate” such statements. 42 U.S.C. § 4332(2)(D\III);
Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011,
1024-25 (2nd Cir. 1983) (holding that the Corps must deliberate itself as to
the relevant facts and the environmental impacts).
59a
2. Standard of Judicial Review
The Corps’ decision to not prepare an EIS will not be
disturbed unless the Court finds it to be “arbitrary, capricious,
and abuse of discretion, or otherwise not in accordance with
law.” APA, 5 U.S.C. § 706(2); California Trout v. Schaefer, 58
F.3d 469, 473 (9th Cir. 1995); Greenpeace, 14 F.3d at 1331.
This is a highly deferential standard-which requires that the
court ensure that the agency took a “hard look” at the proposed
action’s environmental consequences, examining the record to
determine if the agency decision is “‘founded on a reasoned
evaluation “of the relevant factors.””” Id, (quoting Marsh v.
Oregon Natural Resources Council, 490 U.S. 360, 373-74, 378,
109 S. Ct. 1851, 1859 (1989)) (quoting Overton Park, 401 U.S.
at 416, 91 S. Ct. at 824)). Once the court is satisfied that the
“agency’s exercise of discretion is truly informed,” the Court
must defer to that informed discretion. Id. (citing Kleppe v.
. Sierra club, 427, U.S. 390, 412 (1976)). A reviewing court will
only overturn if there has been a “clear error of judgment.”
California Trout, 58 F.3d at 473. Such error will not be found
if the agency “considered the relevant factors and articulated
a rational connection between the facts found and the choice
made.’” Friends of Endangered Species, Inc. v. Jantzen, 760
F.2d 976, 982 (9th Cir. 1985) (quoting Baltimore Gas & Elec.
Co. y. Natural Resources Defense Council, Inc., 462 U.S. 87,
105 (1983)); Northwest Coast Envtl. Ctr. v. Glickman, 136
F.3d 660, 666 (9th Cir. 1998).
Se Plaintiffs’ Motion for Summary Judgment
a) The Corps Decision Not to Analyze
the Entire Playa Vista Project
Plaintiffs claim that the Corps improperly segmented
the Playa Vista project and that the filling of wetlands and the
60a
Playa Vista mixed-use development project are sufficiently
related such that the Corps should have considered them
together in a single EIS. Plaintiffs claim that the Corps’ sole
reasons for not preparing an EIS which addressed the overall
impacts of Playa Vista was its determination that its NEPA
obligations did not extend to the “upland” portions of the
project because “development could occur in those areas
regardless of whether [the] permit application is granted.”
(Pitf.’s Mot. at 23; 8 AR 3769.) This conclusion, Plaintiffs
argue, is contrary to NEPA and is the result of the Corps’
erroneous decision to take at face value without independent
inquiry the applicant's conclusions of fact and law. (See 3 AR
1426.) The Corps’ decision not to Prepare an EIS, despite the
significant impacts was, according to Plaintiffs, arbitrary,
capricious, and not in accordance with NEPA. (Pltf. Mot. at
27.)
Moreover, Plaintiffs argue that both MTP and the Corps
admitted repeatedly that the specific activity requiring a section
404 permit is the Playa Vista mixed-use development and that
filling delineated wetlands is necessary to facilitate its
construction of that project. The “connectivity” between the fill
of wetlands and the upland development in phase I is obvious
through a number of examples in the administrative record,
Plaintiffs claim, such as the definition of the project
descriptions in the administrative record, (8 AR 3713, see
also 8 AR 3730), and from other statements in the record. MTP
has admitted to the Court that without section 404
authorization, it cannot proceed with Phase I of the Playa Vista
project as planned. (See Miller Decl. 410) (submitted June 23,
1997). Plaintiffs claim that the declaration Of MTP's vice
president, Robert Miller, submitted in opposition to a
preliminary injunction motion by Plaintiffs on June 23, 1997,
demonstrates that the freshwater system was designed to
accommodate stormwater run-off not only from the
6la
development of the 16.1 acres to be filled under the Permit, but
also from significant additional phase I upland development as
well. (Miller Decl. 49 7 & 10.)
Defendants argue that the impacts to which Plaintiffs
cite are outside the limits of the Corps, jurisdiction. According
to its own NEPA regulations, the Corps has discretion to limit
the scope of the NEPA review process. The Corps argues that
it properly and appropriately viewed the freshwater wetland
system as merely being “complementary” to the entire Playa
Vista project, and not integrated as in the nature of a single
highway project. Therefore, it claims, the Corps properly
limited the scope of the environmental-analysis for the permit
action as being limited to the impacts of the filling of the 16.1
acres of wetlands.
One of the first steps the Corps was required to take was
to determine the scope of its analysis in determining whether to
prepare an EIS’ Although the Corps has “considerable
“’ The Corps’ regulations provide:
b. Scope of Analysis. (1) In some situations, a permit applicant
may propose to conduct a specific activity requiring a Department
of the Army (DA) permit (e.g., construction of a pier in a
navigable water of the United States) which is merely one
component of a larger project (e.g., construction of an oil refinery
on an upland area). The district engineer should establish the
scope of the NEPA document (e.g., the EA or EIS) to address the
impacts of the specific activity requiring a DA permit and those
portions of the entire project over which the district engineer has
sufficient control and responsibility to warrant federal review.
(2) The district engineer is considered to have control and
responsibility for portions of the project beyond the limits of
Corps jurisdiction where the Federal involvement is sufficient to
turn an essentially private action into a is Federal action. These
62a
_discretion” in determining the scope of its analysis when
assessing environmental impacts of a project, it must consider
“connected or cumulative” actions together “to avoid dividing
a project into multiple actions, each of which individually has
an insignificant environmental impact, but which collectively
have a substantial. impact.” See Alpine Lakes Protection Soc.
v. United States Forest Serv., 838 F. Supp. 478, 481 (W.D.
Wash. 1993); Northwest Resource Info. Ctr. v. NMFS, 56 F.3d
1060, 1067 (9th Cir. 1995); Thomas v. Peterson, 753 F.2d 754,
758 (9th Cir. 1985).
The Corp is required to consider “connected actions” in
a single EIS. See 40 C.F.R. § 1508.25(a)(1). Under CEQ
regulations, “connected actions” means:
(1)... that they are closely related -and therefore
should be discussed in the same impact statement.
Actions are connected if they:
(i) Automatically trigger other actions which may
require environmental impact statements. (ii)
are cases where the environmental consequences of the larger
project are essentially products of the Corps permit action.
Typical factors to be considered in determining whether
sufficient ‘control and responsibility’ exists include: (i)
Whether or not the regulated activity compromises
‘merely a link’ in a corridor type project... . (ii)
Whether there are aspects of the upland facility in the
immediate vicinity of the regulated activity which affect
the location and configuration of the regulated activity.
(iii) The extent to which the entire project will be within
Corps jurisdiction. (iv) The extent of cumulative Federal
control and responsibility.
33 C.F.R. Part 325, App. B.
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.