Paradise Ridge Defense Coal v. Peter Hartman ( 2018 )

FILED
NOT FOR PUBLICATION
DEC 07 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PARADISE RIDGE DEFENSE No. 17-35848
COALITION,
D.C. No. 1:16-cv-00374-BLW
Plaintiff-Appellant,
v. MEMORANDUM*
PETER J. HARTMAN, in his official
capacity as Division Administrator for the
Idaho Division of the Federal Highway
Administration; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Argued and Submitted November 6, 2018
Portland, Oregon
Before: FERNANDEZ and IKUTA, Circuit Judges, and SESSIONS,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
The Paradise Ridge Defense Coalition (Coalition) appeals the district court’s
ruling that the Federal Highway Administration (FHWA) and the Idaho
Transportation Department (IDT) did not violate the National Environmental
Policy Act (NEPA) or other environmental requirements, see 23 C.F.R. § 771.125;
Executive Order 11,990, in selecting an alternative for construction of a new
segment of Highway US-95 south of Moscow, Idaho.
The FHWA took the “hard look” that NEPA requires, see Nat. Res. Def.
Council. v. U.S. Forest Serv., 421 F.3d 797, 810–11 (9th Cir. 2005), and the
agency’s decision was not arbitrary or capricious under the Administrative
Procedure Act, see Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 568 (9th Cir.
2016). We reject the Coalition’s multiple arguments to the contrary. First, the
FHWA’s reliance on the Highway Safety Manual for predicting the relative safety
of each alternative route was reasonable given that it is the industry standard for
highway safety, and the Coalition does not argue that the FHWA should have used
an alternative methodology. See Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d
1095, 1107–08 (9th Cir. 2016). The FHWA disclosed that the methodology did
not yield confidence intervals for each of the proposed alternatives, and the FHWA
also exercised engineering judgment in its evaluation of the proposed alternatives.
Further, the FHWA provided a “reasonably thorough discussion” of the risk and
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severity of collisions between vehicles and wildlife, as well as mitigation measures
to decrease the risk of those collisions. See Neighbors of Cuddy Mountain v. U.S.
Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998).
Second, the FHWA did not make “an irreversible and irretrievable
commitment of resources” before completing its analysis, see Metcalf v. Daley,
214 F.3d 1135, 1143 (9th Cir. 2000), and so did not impermissibly predetermine
the outcome of the NEPA analysis. Nor did the FHWA err in considering one
route from each geographic corridor, because the routes within each geographic
corridor had substantially similar consequences, and NEPA “does not require a
separate analysis of alternatives which are not significantly distinguishable from
alternatives actually considered, or which have substantially similar
consequences.” See Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist.,
914 F.2d 1174, 1181 (9th Cir. 1990). The FHWA also discussed the mitigation
measures for invasive weeds “in sufficient detail to ensure that environmental
consequences [had] been fairly evaluated.” See Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 352 (1989).
Finally, to the extent the Coalition argues that the IDT violated NEPA, we
also reject those arguments because NEPA applies to federal agencies, not state
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agencies, see 42 U.S.C. § 4332, and regardless, the agencies’ actions did not
violate NEPA for the reasons explained above.
Nor did the FHWA violate its regulation requiring prior concurrence in a
final Environmental Impact Statement under certain circumstances. See 23 C.F.R.
§ 771.125. The FHWA determined that prior concurrence was not necessary for
this project, and we afford “substantial deference” to an agency’s interpretation of
its own regulations, see Dep’t of Health & Human Servs. v. Chater, 163 F.3d 1129,
1133 (9th Cir. 1998).
The FHWA complied with Executive Order 11,990 by (among other things)
considering the wetlands impact alongside other pertinent factors, such as highway
safety, and outlining mitigation plans to minimize the impact to wetlands.
Executive Order 11,990 contemplates a balancing of factors, and the FHWA’s
selection of alternative E-2 is supported by the record and is not arbitrary,
capricious, or an abuse of discretion. See Nat’l Wildlife Fed’n v. Adams, 629 F.2d
587, 593 (9th Cir. 1980).
AFFIRMED.
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