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

ELR Citation: 27 ELR 21428
Nos. 94-16234, 123 F.3d 1142/(9th Cir., 08/19/1997)

The court holds that most of the final environmental impact statement (EIS) for a proposed highway realignment through Hatton Canyon near Carmel-by-the-Sea in California satisfies the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). The court then addresses plaintiffs' claim that the final EIS' wetlands discussion is insufficient under NEPA, because it fails to account for new wetlands created by a 1989 earthquake. The court notes that the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA) agree with plaintiffs; both agencies questioned the final EIS' wetlands estimates. The court holds that plaintiffs seek too much from the final EIS. NEPA requires a "reasonably thorough" discussion of the environmental consequences in question, not unanimity of opinion, expert or otherwise. When faced with conflicting evidence, an agency may rely on its own evidence. The court defers to the Federal Highway Administration (FHwA) because the wetlands discussion in the final EIS is "reasonably thorough." The EIS clearly states that the preferred alternative will result in the permanent removal of almost 12 acres of wetlands, characterizes the project's impact on the wetlands as "significant," and proposes various means to mitigate these losses. Two additional factors alleviate the court's concern as to possible inaccuracies in the final EIS' estimated acreage of threatened wetlands, and other problems resulting from the alleged use of "stale" scientific evidence. First, the mitigation plan seeks to replace removed wetlands on at least a 1:1 ratio. Second, any remaining inaccuracies will be cured in the §404 permit process under the Federal Water Pollution Control Act (FWPCA).

The court next rejects plaintiffs' claims that the wetlands mitigation plan misrepresents other agencies' positions, underestimates the difficulties involved, and contains insufficient detail to allow for proper evaluation. The court holds that plaintiffs' claims of misrepresentation amount to semantics. The U.S. Fish and Wildlife Service (FWS) did effectively "concur" in the proposed mitigation plan. The court notes that the final EIS inaccurately states that the Monterey Peninsula Water Management District will assume long-term maintenance of the wetlands restoration project. The court holds that this error is inconsequential because the mitigation plan is not yet final and further details may include a plan with the district. The court holds that the final EIS did not fail to credit properly the difficulties involved in the proposed mitigation plan or to describe adequately the plan in sufficient detail to allow for proper evaluation. The final EIS here sets forth a detailed discussion of the mitigation plan, including both on-site and off-site mitigation proposals. The court next holds that the final EIS' mitigation plan for the Hatton Canyon Monterey pine forest satisfies NEPA's requirements. The court rejects plaintiffs' claim that the final EIS' plan to plant seedlings is insufficient to mitigate fully the lost Monterey pines. The court holds that plaintiffs' references to outside criticism alone are not sufficient to invalidate the final EIS, and that the EIS' Monterey pine discussion was reasonably thorough.

The court next addresses plaintiffs' contention that the final EIS failed to consider properly several environmentally superior alternatives to the Hatton Canyon proposal. Plaintiffs claim that the agencies unjustifiably narrowed the statement of purpose and need from the draft EIS by including a requirement of Level of Service C. The court holds that the inclusion of the Level of Service C in the final EIS is an enhancement from the purpose and need section of the draft EIS, but not a surprise. Level of Service C is explicitly mentioned in the draft EIS' "problem definition" section as the minimum acceptable level of service, and was also discussed in the "Preferred Alternative Recommendation" issued after the draft EIS, but before the final EIS. The court holds that this finding made formal the Level of Service C goal and put all parties on notice. The court holds that Level of Service C is not an unreasonable goal; nothing about this selection is either arbitrary or capricious. The court also notes that Level of Service C was never the sole defined project goal. Nothing in the final EIS suggests that Level of Service C was elevated above the environmental and financial considerations listed. The court thus holds that the choice of Level of Service C as a project goal was not unreasonable.

Having reviewed the project goals, the court considers the range of alternatives analyzed in the final EIS. These alternatives, with a few exceptions, were essentially the same as those outlined in the draft EIS. The court holds that plaintiffs' claim that the alternative chosen was the only alternative that met the project goals is unfounded. The alternative chosen emerged as a favorite in large part, but not solely, because it met the requisite traffic goal. Further, it was the only alternative that met the goals of the California Coastal Act and the Monterey County Local Coastal Plan. The court holds that in choosing the Hatton Canyon alternative, the FHwA and Caltrans properly rejected the Smith Report recommendation, which endorsed widening Highway 1 through the city, on the grounds that it offered no new, substantive proposal for alternative alignment that the EIS had not previously considered and addressed. The Smith Report's alternative was similar to an alternative discussed in the final EIS and thus did not merit either an independent analysis or inclusion in the final EIS. Moreover, the FHwA and the Caltrans concluded that the Smith Report alternative would only achieve Level of Service F. The court thus rejects plaintiffs' reasonable alternatives challenge.

The court next holds that the final EIS fails both to catalogue adequately past projects in the area and to provide any useful analysis of the cumulative impact of past, present, and future projects and the Hatton Canyon freeway on the wetlands, Monterey pine, and Hickman's onion. These analyses are not lengthy, and taken either separately or together they fail to provide sufficient information to satisfy NEPA. The court rejects the agencies' contention that plaintiffs failed to meet their burden of proof to show what projects the final EIS failed to consider. The FHwA and Caltrans failed first: they did not properly describe other area projects or detail the cumulative impacts of these projects. The court notes that the FHwA and Caltrans cite to, and rely on, the Carmel Valley Master Plan Environmental Impact Report to provide the missing cumulative impacts analysis. The court is suspicious as to whether this document alone can supply the necessary analysis. Further, it is not clear that the document was properly included in the record or that the agencies properly incorporated it into the final EIS. The court thus remands for entry of an order directing the FHwA and Caltrans to determine whether the Carmel Valley Master Plan was properly included in the record, properly incorporated into the EIS, and whether it provides the necessary cumulative impacts analysis.

The next court holds that the FHwA and state transportation agency did consider the growth-inducing impact of the Hatton Canyon proposal, and although their analysis is not without fault, it satisfies NEPA. The construction of the Hatton Canyon freeway will not spur on any unintended or, more importantly, unaccounted for, development, because local officials have already planned for the future use of the land, under the assumption that the freeway would be completed. Although the relevant information is segmented here, as the final EIS relies on both the Carmel Valley Master Plan and the Greater Monterey Peninsula Area Plan, the requisite analysis is provided. No further analysis is necessary.

Next, the court turns to plaintiffs' CEQA challenges. The court holds that the final environmental impact report's (EIR's) discussion of wetlands suffices under the CEQA. The final EIR classifies the project's impact on wetlands as significant, and thus presents a detailed discussion as to the area in question and the plans to mitigate. The court holds that the final EIR's mitigation plan is also sufficient under the CEQA. The FHwA and Caltrans proposed a detailed mitigation plan to compensate for the loss of wetlands. Agency criticism of these plans, standing alone, does not invalidate the final EIR in the face of this thorough discussion of wetlands and the wetlands mitigation plan. The court holds that the EIR's Monterey pine mitigation plan also suffices under the CEQA. Relying on its earlier discussion in terms of the final EIS under NEPA, the court holds that the final EIR meets CEQA's requirements with respect to reasonable alternatives. The court holds that given the traffic, environmental, and financial goals of the project, the chosen alternative was reasonable. The court holds that because CEQA's cumulative impacts requirements closely mirror the federal standards, the final EIR is inadequate in this respect as under NEPA. The court notes that the Monterey Valley Master Plan, cited in the final EIR, may address these concerns. The court remands to the district court for a determination of this issue by the FHwA and Caltrans. Noting that CEQA's growth-inducing effects requirements differ from the federal standard, the court holds that the information in the EIR is sufficient to satisfy CEQA.

The court next addresses plaintiffs' argument that the FHwA erred in finding that the Hatton Canyon project satisfied the requirements of Executive Order (EO) No. 11988 regarding floodplain management, and EO No. 11990 regarding wetlands. The court initially holds that both EO No. 11988 and EO No. 11990 are subject to judicial review under the Administrative Procedure Act. The court then rejects plaintiffs' argument that adoption of the Level of Service C goal unnecessarily narrowed the range of alternatives the FHwA was required to consider regarding the project's effects on floodplains. The court holds that the alternatives the FHwA considered were reasonable and that agency's findings under EO No. 11988 were neither arbitrary or capricious. The court also holds that the FHwA's mitigation discussion in its "only practicable alternative" memorandum is adequately detailed to meet EO No. 11990's requirement that the agency take all practicable measures to minimize harm to wetlands. Finally, the court holds that plaintiffs are potentially entitled to an attorneys fee award on the cumulative impacts issue alone. The court grants leave to the district court to determine whether attorneys fees are appropriate on this issue and, if so, to fix the amount of the award.

Counsel for Plaintiffs
Rachel B. Hooper
Shute, Mihaly & Weinberger
396Hayes 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, JJ.