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Laguna Greenbelt v. Department of Transp.

ELR Citation: 25 ELR 20349
Nos. No. 94-55757, 42 F.3d 517/(9th Cir., 12/02/1994, 12/20/1994)

The court affirms a district court decision that the Federal Highway Administration's (FHwA's) environmental impact statement (EIS) for a proposed tollroad in southern California did not violate §102 of the National Environmental Policy Act (NEPA), and that the FHwA's decision not to do a supplemental EIS after wildfires burned areas through which the tollroad would pass was not arbitrary or capricious. The court also affirms the district court's decision that the project's proposed use of a university reserve and 23 parkland properties is exempt from §4(f) of the Department of Transportation Act (DTA) under §1065 of the Intermodal Surface Transportation Efficiency Act (ISTEA). Four citizen groups challenged the FHwA's decision to approve the tollroad, which will run from Newport Beach to San Juan Capistrano, California. The tollroad was designed to relieve traffic congestion and high levels of air emissions on the freeway system and on local highways in south Orange County. Five miles of the proposed tollroad bisect the Laguna Greenbelt, a 16,000-acre undeveloped area in Orange County.

The court finds that the EIS contains a reasonably thorough discussion of alternatives satisfying the project's goals. The EIS does not have to discuss a minimum number of alternatives. The court further holds that the EIS properly rejected the groups' proposed four-lane alternative, which included special pricing mechanisms, because it is not rationally related to the project's purpose of reducing traffic congestion. The court holds that an EIS need not consider every conceivable alternative, and the groups' other suggested alternatives are not reasonable or obvious.

The court next holds that, even though weaknesses exist in the EIS' analysis of the tollroad's growth inducing impacts in Orange County, the EIS' discussion of such impacts was reasonably thorough and easily meets the "rule of reason." The court also holds that the FHwA's reliance on Orange County's population and employment projections in formulating the project's traffic projections did not violate NEPA. Existing as well as future traffic projections show the need for the corridor. The court further holds that the EIS' failure to disclose that the corridor would use 1.7 acres of an ecological preserve the University of California owns does not invalidate the EIS, because this technical nondisclosure did not frustrate NEPA's goal of ensuring that relevant information is available to the wider audience participating in agency decisionmaking. The public had sufficient information on the tollroad's impact on the reserve to submit comments, and the FHwA knew about the impact on the reserve before it made its final decision. In addition, the opportunities for public involvement that this litigation provides cures any defects that might have existed in the EIS.

The court holds that the EIS' discussion of mitigation measures was reasonably thorough and sufficient to satisfy NEPA §102(2)(C)(ii)'s requirements. The court next holds that the EIS does not present a skewed analysis of the project's area of impact, because it analyzes the project's negative and positive impacts on biological resources in a regional and cumulative way. The court concludes that the EIS' method of describing the tollroad's area of impact resulted in a reasoned analysis of the available data.

The court holds that the FHwA's decision not to do a supplemental EIS after wildfires burned areas through which the tollroad would passwas not arbitrary or capricious. By reinitiating consultation with the U.S. Army Corps of Engineers on the project's runoff management plan and erosion control measures and with the U.S. Fish and Wildlife Service (FWS) on endangered species, the FHwA took the requisite hard look at the project's environmental consequences in light of the wildfires. The court finds unpersuasive the citizen groups' contention that the FHwA failed to consider the combined effects of the tollroad and the wildfires on the amount and nature of runoff into downstream water resources and the groups' contention that the FHwA improperly concluded that existing mitigation measures were sufficient to address the fire's affect on biological resources.

The court affirms the district court's holding that the tollroad's use of 1.7 acres of the University of California's ecological reserve exempt from DTA §4(f)'s stringent environmental review requirements under ISTEA §1065. The University's planning documents and accompanying public comments and responses sufficiently identify the tollroad's location and alignment using University property so as to exempt the reserve from §4(f)'s requirements. The court next affirms the district court's holding that 23 parkland properties are exempt from DTA §4(f)'s requirements under ISTEA §1065. The district court properly found that §1065 exempts nine of the 23 properties because Orange County's Board of Supervisors acquired them after approving the proposed tollroad's preferred alignment. In addition, the district court properly found that §1065 exempts a 10th parkland property because the acquisition documents and maps for it specifically refer to and reserve the tollroad's location. The court next holds that the groups may not challenge the FHwA's "no use" determination for eight of the properties because they did not challenge that determination before the district court. The court upholds the FHwA's determination that §4(f) does not apply to the five remaining properties because the project will not actually or constructively use four of them, and no prudent and feasible alternatives exist to using the last property, and that the project includes all possible planning to minimize harm.

Counsel for Plaintiffs
Craig S. Bloomgarden
Heller, Ehrman, White & McAuliffe
601 S. Figueroa St., Los Angeles CA 90017

Counsel for Defendants
Ellen J. Durkee, John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530

Before Feinberg,* Schroeder, and Kozinski, JJ.