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North Idaho Community Action Network v. Department of Transp.

ELR Citation: 38 ELR 20260
Nos. No. 08-35283, (9th Cir., 10/06/2008)

The Ninth Circuit affirmed in part and reversed in part a lower court decision holding that the U.S. Department of Transportation (DOT) and the Idaho Transportation Department complied with the National Environmental Policy Act (NEPA) and the DOT Act in approving the construction of a highway improvement project in Idaho. The agencies fulfilled their obligations under NEPA's alternatives provision when they considered and discussed only two alternatives in the 2005 environmental assessment (EA). They also satisfied NEPA's requirements for historic properties. Similarly, the agencies did not violate NEPA by failing to disclose and assess in the 2005 EA, or in a supplemental EA, impacts from the proposed dredging of a creek. Nor did the agencies violate NEPA by failing to consider a new tunnel alternative for the project when it was brought to their attention in 2006. And the agencies did not arbitrarily and capriciously fail to prepare a supplemental environmental impact statement (EIS) regarding changes to the project discussed in the 2005 EA and the 2006 reevaluation. The agencies, however, violated §4(f) of the DOT Act by failing to survey for, identify, and evaluate the impacts on historic properties for all four phases of the project. An agency must complete the §4(f) evaluation for the entire project prior to issuing a record of decision. Nevertheless, the court determined it was unnecessary to enjoin the entire project. The §4(f) evaluation has been completed with respect to the Sand Creek Byway phase of the project. This phase has independent viability and will accomplish many goals of the overall project. Injunctive relief should therefore be limited to precluding the agencies from commencing construction of the remaining three phases of the project until the §4(f) evaluation has been fully completed.