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Carmel-by-the-Sea, City of v. Department of Transp.

ELR Citation: 27 ELR 20047
Nos. 94-16234, 95 F.3d 892/(9th Cir., 09/13/1996) remanded in part

The court holds that the U.S. Department of Transportation (DOT) and the California Department of Transportation violated the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) by failing to consider new alternatives to a proposed highway when a revised statement of the project's purpose could be satisfied by only one of the alternatives considered. The selected alternative would realign a portion of California State Highway 1 from the outskirts of Carmel-by-the-Sea to Hatton Canyon to relieve traffic congestion. The court first holds that the environmental impact statement/report's (EIS/R's) consideration of wetlands mitigation measures is inadequate because it relied on a 1987 U.S. Army Corps of Engineers' wetlands delineation that subsequent earth movements made obsolete. The court next adopts the Fifth Circuit's set of guidelines for what a cumulative-impacts analysis requires. The court holds that the EIS/R is not sufficient on its own to satisfy the criteria. Becaue the court is unable to independently to evaluate the cumulative-impacts analysis in the Carmel Valley Master Plan environmental impact report, to which the EIS/R refers, the court remands the issue to district court for reevaluation in light of the Fifth Circuit's criteria. The court next holds that the change from the draft EIS/R's statement of purpose and need for the project, which did not specify a minimum level of traffic flow, to the final EIS/R's statement, which explicitly required traffic flow "level of service C," is material. The court holds that by materially changing the goal of the EIS/R without also considering an acceptable range of alternatives designed to meet the changed purpose, the agencies failed to consider a range of alternatives that were dictated by the nature and scope of the proposed action and sufficient to permit a reasoned choice. Where, as here, a range of alternatives is developed in conjunction with a statement of purpose that is subsequently changed to eliminate all but one of the initial range of alternatives, there has been an abuse of discretion. It does not matter whether the change was undertaken with outcome-forcing intent. New alternatives are necessary to fulfill NEPA's and the CEQA's requirement that an EIS/R consider an appropriate range of alternatives. The court therefore also sets aside DOT's findings under Executive Order Nos. 11988 and 11990 that the selected alternative is the "only practicable alternative."

The court next holds that the EIS/R's plan to mitigate impacts to the Monterey pine by replacing destroyed trees with seedlings from the same genetic stock is not arbitrary, capricious, or an abuse of discretion. The court also holds that the EIS/R's incorporation by reference of existing growth plans for the area that examined the possibility of a Hatton Canyon highway warrant a conclusion that the EIS/R is reasonably thorough in its treatment of growth-inducing effects, thereby satisfying NEPA and the CEQA. The court next grants plaintiffs attorneys fees against the United States under the Equal Access to Justice Act for the wetlands and consideration of alternatives issues, including the Executive Orders. The Federal government's position was not substantially justified. The court denies attorneys fees on the issue of cumulative impacts, however, because it is unable to say whether or not the federal government's position was reasonable. The court also grants plaintiffs attorneys fees under Cal. Civ. P. Code §1021.5 on the wetlands and consideration of alternatives issues, because plaintiffs are prevailing parties on several issues, the suit involves important public rights, and there is no monetary recovery.

A dissenting judge would hold that the final statement of purpose and need was not materially different from the draft statement and did not necessitate consideration of new alternatives; that the consideration of wetlands mitigation arrayed for the public sufficiently detailed information and serves NEPA's action-forcing purpose; and that the EIS/R adequately considered cumulative impacts.

Counsel for Plaintiffs
Rachel B. Hooper
Shute, Mihaly & Weinberger
396 Hayes St., San Francisco CA 94102
(415) 552-7272

Counsel for Defendants
Martin W. Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before NORRIS, BEEZER, and TROTT, Circuit Judges: