Maule-Ffinch et al v. Connor et al, No. 2:2007cv00454 - Document 176 (D. Ariz. 2010)

Court Description: ORDER denying in its entirety 150 Motion for Summary Judgment; granting 152 Motion to Strike Exhibit One from Plas' Motion for Summary Judgment (Exhibit 1 to Statement 153 ); granting in its entirety 154 Cross-Motion for Summary Judgment; granting in its entirety 157 Cross-Motion for Summary Judgment; granting 168 Motion to Strike Exhibit A to Federal Dfts' Reply in Support of their Cross-Motion for Summary Judgment on Counts Two Through Four of the First Amended Complaint ( Exhibit A to reply 164 ); denying as moot 169 Motion to Strike Extra-Record Documents Intervenor Lake Pleasant Marina Partners Attached to its Reply in Support of the Cross-Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of the federal dfts and LPMP and terminate this action. (See document for full details). Signed by Judge Robert C Broomfield on 7/29/10.(LAD)

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Maule-Ffinch et al v. Connor et al 1 Doc. 176 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Protect Lake Pleasant, LLC, an Arizona limited liability company; David Maule-Ffinch; Michael Viscuis; and Pensus Group, L.L.C., an Arizona limited liability company, ) ) ) ) ) ) ) Plaintiffs ) ) vs. ) ) ) Michael Connor,1 in his official capacity as ) Commissioner, United States ) Bureau of Reclamation; ) United States Bureau of ) Reclamation; an agency of ) the United States Department ) of Interior, and Ken Salazar, ) in his official capacity as ) Secretary, United States ) Department of Interior, ) ) Defendants ) ) and ) ) No. CIV 07-0454-PHX-RCB O R D E R 1 In accordance with Fed. R. Civ. P. 25(d), which allows for substitution when, among other reasons, “a public officer who is a party in an official capacity . . . ceases to hold office while the action is pending[,]” the court hereby substitutes Michael Connor, Commissioner of the Bureau of Reclamation (“Reclamation”), for former Acting BOR Commissioner, Robert W. Johnson. Dockets.Justia.com 1 2 3 4 Lake Pleasant Marina Partners,) LLC, an Arizona limited ) liability company, ) ) ) Defendant-Intervenor) ) 5 Introduction 6 Plaintiff David Maule-Ffinch is the owner of Pensus Group, 7 LLC, also a plaintiff herein. Pensus Group is the developer and 8 operator of the Pleasant Harbor Marina located on the eastern shore 9 of Lake Pleasant in Maricopa County (“the County”), Arizona. As 10 thoroughly discussed in Protect Lake Pleasant, LLC v. McDonald, 609 11 F.Supp.2d 895 (D.Ariz. 2009) (“Protect Lake Pleasant V”), Pensus 12 Group was precluded from bidding on a 2005 Request for Proposal for 13 the development and operation of Scorpion Bay Marina, to be located 14 on the western shore of Lake Pleasant. Eventually, Lake Pleasant 15 Marina Partners, LLC (“LPMP”), the defendant-intervenor, was 16 awarded that contract, and the Scorpion Bay Marina & Yacht Club is 17 now operating. 18 On February 8, 2007, the Arizona Corporation Commission 19 approved the formation of Protect Lake Pleasant LLC, also a 20 plaintiff herein. See http://starpas.azcc.gov/scripts/ 21 cgiip.exe/WService=wsbroker1/names-detail.p?name-id=L1. That non- 22 profit limited liability company was “formed[,]” among other 23 reasons, to protect the natural environment, wildlife and resources 24 at Lake Pleasant and Lake Pleasant Regional Park [(“LPRP”)][.]" 25 First Amended Complaint (“FAC”) (Doc. 4) at 3, ¶ 4:2-3. Plaintiff 26 Michael Viscuis is a “participating member of Protect Lake 27 Pleasant[.]" Id. at 4, ¶ 7:18. Several weeks after the formation 28 of the LLC, on February 27, 2007, plaintiffs commenced this -2- 1 lawsuit. 2 The FAC alleges several violations of the National 3 Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4347, 4 and a violation of the Clean Air Act (“CAA”), 42 U.S.C. 42 U.S.C. 5 §§ 7401-7671q,2 by defendant, the United States Bureau of 6 Reclamation (“Reclamation”3). Basically, plaintiffs allege that 7 Reclamation violated NEPA by issuing a Final Environmental 8 Assessment and Finding of No Significant Impact (“FONSI”) with 9 respect to the Scorpion Bay project. Plaintiffs further allege 10 that Reclamation violated NEPA by not preparing an Environmental 11 Impact Statement (“EIS”) for that project. Alternatively, if the 12 court determines that an EIS was not required, plaintiffs allege 13 that Reclamation violated NEPA by failing to perform an adequate 14 environmental assessment (“EA”). Plaintiffs’ final NEPA claim is 15 based upon Reclamation’s supposed failure to provide meaningful 16 opportunity for public comment of the Final EA. 17 Currently pending before the court are motions for summary 18 judgment by plaintiffs (Doc. 150), and cross-motions for summary 19 judgment by Reclamation (Doc. 154) and LPMP’s (Doc. 157). Three 20 motions to strike also are pending before the court (Docs. 152; 21 168; and 169). Reclamation is seeking to strike from plaintiffs’ 22 statement of facts (“PSOF”) an internal Maricopa County Air Quality 23 Department (“MCAQ”) e-mail. Plaintiffs are seeking to strike 24 25 26 27 28 2 Previously, the court granted summary judgment in favor of Reclamation and LPMP as to count one of the FAC, alleging violations of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. §§ 100-126. See Protect Lake Pleasant V, 609 F.Supp.2d 895. 3 Hereinafter Reclamation shall be read as including the individual defendants as well, Messrs. Connor and Salazar. However, when citing to Reclamation’s memoranda, the court will use the abbreviation “BOR.” -3- 1 exhibit A to Reclamation’s Reply - an untitled document which 2 Reclamation describes as “Calculation of PM104 and Ozone Emissions 3 Using Plaintiffs’ Mileage Estimates[]” (“the Emissions Chart”) 4 (footnote added). See BOR’s Reply (Doc. 164) at 16:20. If granted, 5 these two motions to strike could expand the scope of the record. 6 Therefore, the court will address these motions at the outset.5 7 . . . 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 “PM” refers to “‘particulate matter,’ that is, the particles found in the air, such as dust, dirt, soot, smoke, and liquid droplets.” Latino Issues Forum v. EPA, 558 F.3d 936, 938-39 (9th Cir. 2009). “Particles with a diameter less than or equal to ten micrometers are known as PM-10.” Id. at 939 (citing 40 C.F.R. § 50.6(c)). 5 Only the plaintiffs are requesting oral argument. Given the court’s intimate familiarity with this action, in its discretion, the court denies plaintiffs’ request as oral argument will not aid the decisional process. See Fed.R.Civ.P. 78; Lake at Las Vegas Investors Group, Inc. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). -4- Discussion6 1 2 I. 3 Motions to Strike7 The primary basis for all three motions to strike is that the 4 parties are impermissibly seeking to expand the scope of the 5 administrative record herein. Twice already this court has 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 6 Roughly coinciding with the filing of plaintiffs’ summary judgment motion, Scorpion Bay Marina began operating. Despite that, wisely neither Reclamation nor LPMP argue that this action is moot, and hence this court lacks jurisdiction. See, e.g., Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 871-872 (9th Cir. 2005) (proper remedy for Corps of Engineers’ failure to prepare an EIS before issuing a permit to allow construction of an extension to an oil refinery dock was to require preparation of an EIS, even though the dock extension had been completed); West v. Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 (9th Cir. 2000) (NEPA action not moot although Stage I of a highway interchange project was complete because court’s “remedial powers would include remanding for additional environmental review and, conceivably, ordering the interchange closed or taken down[]”); and Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (citations and internal quotation marks omitted) (cataloging Ninth Circuit decisions finding “live controversies in environmental cases even after the contested . . . projects were complete[]” because the “violation complained of may have caused continuing harm and . . . the court can still act to remedy such harm by limiting its future adverse effects[]”). However, LPMP alone argues that plaintiffs’ request for injunctive relief is moot. (Plaintiffs also are seeking (1) a declaration that the FONSI was issued in violation of NEPA; and (2) a remand . . . to [Reclamation] with instructions to prepare an EIS regarding the proposed marina[.]” Pls’. Mot. Summ. J. (Doc. 150) at 25:19-20; and 22-23 (citations omitted))). LPMP posits that plaintiffs’ “request for ‘an injunction barring the continued operation of, or, at a minimum, any further consideration at, the proposed marina’ is not cognizable because the injunctive relief was rendered moot by [Reclamation’s] approval of the FONSI.” LPMP’s Cross-mot. (Doc. 157) at 24:11-13. Assuming arguendo that LPMP is correct, and in part because there are no challenges to the other forms of relief which plaintiffs are seeking, the court will first address the merits. If plaintiffs’ ultimately prevail on any or all of their three remaining claims, obviously then the court will address the nature and scope of available remedies. For now though, the court will concentrate on the merits of plaintiffs’ claims. 21 7 22 23 24 25 26 27 28 Local Rule of Civil Procedure 7.2(m)(2) is clear: “An objection to the admission of evidence offered in support of or opposition to a motion must be presented in the objecting party’s response or reply memorandum (or, if the underlying motion is a motion for summary judgment, in the party’s response to another party’s separate statement of material facts) and not in a separate motion to strike or other separate filing. LRCiv 7.2(m)(2) (emphasis added). In direct contravention of that Rule, LPMP and Reclamation filed separate motions to strike. Also in direct contravention of that Rule, the parties filed separate responses to the various motions to strike. (Admittedly, LPMP did partially comply with that Local Rule by setting forth its position as to Reclamation’s motion to strike exhibit one in its response to plaintiffs’ summary judgment motion.) Further, although LRCiv 7.2(m)(2) makes no provision for replies in connection with a motion to strike, the parties also filed replies. By failing to fully comply with the Local Rules of this court, the parties have unnecessarily multiplied the filings in this action. -5- 1 “enumerated the limited circumstances . . . where it is proper to 2 consider extra-record material when reviewing an agency decision 3 under the APA [Administrative Procedure Act, 5 U.S.C. § 701 et 4 seq.].” Protect Lake Pleasant v. Johnson, 2:07-cv-00454-RCB (Doc. 5 97) at 6:17-19 (“Lake Pleasant IV”). Rather than repeating those 6 exceptions and the case law construing them, the court incorporates 7 by reference the relevant portions of its prior decisions, see id.; 8 and Protect Lake Pleasant v. Johnson, 2007 WL 1486869, at *4 9 (D.Ariz. May 21, 2007) (“Lake Pleasant I”), aff’d without pub’d 10 opinion, 252 Fed. Appx. 856 (9th Cir. 2007) (“Lake Pleasant III”), 11 and continues to be guided by those principles in addressing these 12 motions to strike. 13 A. MCAQ e-mail 14 Exhibit one to PSOF is a January 24, 2007, MCAQ e-mail 15 pertaining to carbon monoxide (“CO”) emissions from Matthew Poppen, 16 a MCAQ Planner. In that capacity, Mr. Poppen ran models for 17 “calculat[ing] . . . CO emissions generated by the proposed marina 18 to assist [Reclamation] in preparing the [EA] at issue”8 herein. 19 Pls.’ Resp. (Doc. 159) at 1:12-15 (citations omitted). In that e- 20 mail, Mr. Poppen listed the reasons why he “ran into nothing but 21 dead ends when looking through the CO redesignation request for 22 information on pleasure craft[.]” Id. Opining that the “[S]corpion 23 [B]ay [M]arina is dead in the water, up a creek, etc.,” Poppen 24 concluded, “[s]ince we have already exceeded projected emission 25 values for 2006 and 2015, [he] [did not] know where else to go[.]” 26 Id. 27 28 8 Hereinafter that 2007 EA will be referred to as the “Final EA.” -6- 1 Reclamation is moving to strike this e-mail (exhibit one) from 2 PSOF, and LPMP joins in that motion. 3 157) at 15, n. 6. See LPMP’s Cross-mot. (Doc. This motion to strike is one of several aspects 4 of the pending motions with which the court has more than passing 5 familiarity. 6 During the preliminary injunction hearing, plaintiffs sought 7 to introduce this same e-mail into evidence. 8 the same rationale as they did then. Plaintiffs offer Primarily because that e-mail 9 is not part of the administrative record, Reclamation contends that 10 the court must strike it from PSOF. Reclamation further asserts 11 that the court should not consider this e-mail because it is an 12 internal MCAQ e-mail which was not provided to Reclamation until 13 after the fact. Lastly, Reclamation notes that this e-mail “is a 14 pre-decisional document.” BOR’s Mot. Strike (Doc. 152) at 4:21. 15 Sustaining Reclamation’s objection as “well[-]taken[,]” this court 16 refused to consider the January 24, 2007, MCAQ e-mail in connection 17 with plaintiffs’ preliminary injunction motion. Id., exh. A 18 thereto (Doc. 152-2) at 6. 19 Despite the foregoing, plaintiffs counter that the court now 20 should consider this e-mail as “background information that 21 explains and gives context to the prior and subsequent e[-]mails 22 and other communications” in the administrative record pertaining 23 to “Poppen’s calculation of emissions for the proposed marina which 24 are also part of the [administrative record].” 25 159) at 3 (citations omitted). Pls.’ Resp. (Doc. Additionally, given Mr. Poppen’s 26 acknowledgment in that e-mail that the County “ha[s] already 27 exceeded projected emission values for 2006 and 2015,” plaintiffs 28 suggest that “the subsequent adjustments to the data at the behest -7- 1 of [LPMP] were not done in good faith, but instead to reach a 2 predetermined result.” 3 Id. (citation omitted). Plaintiffs also deem significant the timing of this e-mail. 4 From plaintiffs’ standpoint, the fact that this e-mail was created 5 after the November 17, 2006, deadline for public comment on the 6 Revised Draft EA “reinforce[s] [its] argument that [Reclamation] 7 violated the public disclosure requirements of [NEPA].” 8 3:25 - 4:1 (citation omitted). Id. at These reasons, according to 9 plaintiffs, provide more than a sufficient basis for denying 10 Reclamation’s motion to strike exhibit one (the January 24, 2007 11 MCAQ e-mail) from PSOF. 12 Generally in reviewing agency determinations, judicial review 13 is limited to the administrative record. The Ninth Circuit has 14 identified four exceptions allowing consideration of extra-record 15 materials, however: 16 17 18 (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record,[ ] 19 20 (3) when supplementing the record is necessary to explain technical terms or complex subject matter, [or] . . . 21 (4) when plaintiffs make a showing of agency bad faith. 22 23 Biological Diversity v. U.S. Fish, Wildlife, 450 F.3d 930, 943 (9th 24 Cir. 2006) (citation omitted). Reclamation responds to plaintiffs’ 25 effort to expand the administrative record by noting that 26 “background information” is not one of those four delineated 27 exceptions. 28 Reclamation’s position is well-taken. -8- Plaintiffs have not 1 shown, as they must, that this particular e-mail comes within the 2 ambit of any of the four exceptions to the general rule that “‘the 3 focal point for judicial review should be the administrative record 4 already in existence, not some new record made initially in the 5 reviewing court.’” See id. (quoting Camp v. Pitts, 411 U.S. 138, 6 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)) (other citation 7 omitted). 8 Further, the authority to which plaintiffs cite does not 9 support a “background” exception to the rule disfavoring 10 supplementation of the administrative record. In Inland Empire 11 Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754 (9th Cir. 12 1996), an environmental action, the Ninth Circuit did hold that the 13 district court properly considered an extra-record declaration on a 14 summary judgment motion. That declaration was not allowed as 15 “background information” per se, but to explain a “highly technical 16 matter” as to how the Forest Service’s “‘habitat viability 17 analyses’ [we]re insufficient.” Id. at 760. Mr. Poppen’s January 18 24, 2007, e-mail, does mention some CO numbers, but it does not 19 contain or explain “highly technical matter[s]” such as the 20 analyses at issue in Inland Empire. 21 Plaintiffs’ citation to Thompson v. U.S. Dept. Of Labor, 885 22 F.2d 551 (9th Cir. 1989), is equally inapposite. There, the 23 disputed evidence fell within the second exception - agency 24 reliance upon a document. More particularly, the Court found that 25 certain correspondence was part of “the whole administrative 26 record” because it was “considered by the [agency], either directly 27 or indirectly, . . . and consequently [was] properly part of the 28 administrative record.” Id. at 555-56. -9- Plainly the January 24, 1 2007 e-mail was not considered either directly or indirectly by 2 Reclamation as part of the administrative process. Reclamation did 3 not even become aware of this e-mail until well after the fact. 4 Thus, the court disagrees with plaintiffs that Thompson supports 5 the view that this court should consider that e-mail even though it 6 was not part of the “whole administrative record” herein. 7 Plaintiffs do imply bad faith on Reclamation’s part, as 8 mentioned earlier, and bad faith is one of the bases for 9 considering extra-record materials. As Reclamation soundly 10 reasons, however, the subject e-mail cannot support a finding of 11 bad faith by Reclamation because its decision-makers never received 12 that e-mail. Hence, as Reclamation also soundly reasons, it would 13 be practically impossible for plaintiffs to establish any casual 14 connection between that e-mail and any purported bad faith by 15 Reclamation. Merely incanting the phrase “bad faith,” as 16 plaintiffs do, is not tantamount to a “strong showing of bad faith 17 or improper behavior,” discussed in Lake Pleasant IV, so as to 18 justify consideration of extra-record materials. 19 at 13-20. See id. (Doc. 97) Finally, given the timing of this e-mail – after the 20 November 17, 2006, deadline for public comment on the Revised Draft 21 EA – it strikes the court that perhaps plaintiffs are improperly 22 attempting to “use post-decision information as a new 23 rationalization . . . for . . . attacking [BOR’s] decision.” See 24 Biological Diversity, 450 F.3d at 943 (internal quotation marks and 25 citation omitted). 26 Although the parties’ respective arguments are more fully 27 developed than they were at the preliminary injunction hearing, 28 that does not change the result. The court abides by its prior - 10 - 1 ruling, and for the reasons outlined above, in deciding these 2 cross-motions for summary judgment, it will not consider the 3 January 24, 2007 MCAQ e-mail. Accordingly, the court grants 4 Reclamation’s “Motion to Strike Exhibit One from Plaintiffs’ Motion 5 for Summary Judgment” (Doc. 152). 6 B. 7 Correspondingly, plaintiffs filed a motion to strike an Emissions Chart 8 exhibit which Reclamation is proffering - an untitled three page 9 document Reclamation describes as “Calculation of PM10 and Ozone 10 Emissions Using Plaintiffs’ Mileage Estimates[]” (“the Emissions 11 Chart”). See BOR’s Reply (Doc. 164) at 16:20. That Emissions 12 Chart is attached to Reclamation’s Reply, as opposed to a 13 supporting affidavit. 14 On its face, there is no indication on that Emissions Chart as 15 to the purpose for which it was prepared; the sources for most of 16 the data thereon; who prepared it and when. These omissions are 17 all problematic, as is the timing of its offering. Reclamation 18 produced this Emission Chart for the first time as an attachment to 19 its Reply on these summary judgment motions. 20 Despite these obvious shortcomings, Reclamation is relying 21 upon this Chart to counter plaintiffs’ argument that the Final EA 22 understates the PM10 and Ozone emissions. That Chart is based upon 23 plaintiffs’ mileage estimates which Reclamation acknowledges are 24 not part of the administrative record. 25 at 1:24-25. See BOR’s Resp. (Doc. 171) Nonetheless, Reclamation urges this court in its 26 discretion to consider that Chart to illustrate that “[e]ven 27 assuming, as plaintiffs wish, that a 10 mile trip is insufficient 28 to realistically project PM10 and ozone emissions, a recalculation of - 11 - 1 these emissions using plaintiffs [’] proposed mileage figures would 2 not result in emissions in excess of the de minimus levels.” BOR’s 3 Reply (Doc. 164) at 16:17-20 (citation omitted). 4 Plaintiffs offer a host of reasons as to why the court should 5 strike that Chart from Reclamation’s Reply. There are several 6 possible reasons for striking that Chart, but the most fundamental 7 is lack of authentication. 8 In ruling on a motion for summary judgment, a trial court “may 9 only consider admissible evidence[.]” Ballen v. City of Redmond, 10 466 F.3d 736, 745 (9th Cir. 2006) (citation omitted). It is the 11 contents of the evidence which must be admissible; at the summary 12 judgment stage the “focus [is not] on the admissibility of the 13 evidence’s form.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 14 2003) (citations omitted). Here, the issue is whether the contents 15 of the Emissions Chart are admissible. See id. at 1036 (“It would 16 be sufficient if the contents of the diary are admissible at trial, 17 even if the diary itself may be inadmissible.”) 18 As the Ninth Circuit has explained, “[a]uthentication is a 19 ‘condition precedent to admissibility, and this condition is 20 satisfied by ‘evidence sufficient to support a finding that the 21 matter is what its proponent claims.’” Orr v. Bank of America, 285 22 F.3d 764, 773 (9th Cir. 2002) (quoting Fed. R. Evid. 901(a)) 23 (footnotes omitted). “[U]unauthenticated documents cannot be 24 considered in a motion for summary judgment[,]” as this Circuit has 25 “repeatedly held[.]” Id. (citing cases). 26 Here, the Emissions Chart is not attached to an affidavit 27 which meets the requirements of Fed. R. Civ. P. 56(e). Therefore, 28 it must be authenticated in “any manner permitted by Federal Rule - 12 - 1 of Evidence 901(b) or 902.” See id. at 774 (citations omitted). 2 This Chart does not come within the ambit of any of the ten 3 illustrative ways in which evidence can be authenticated or 4 identified pursuant to Rule 901(b). Rule 901(b) permits other 5 means of authentication,9 but Reclamation does not suggest any 6 other means. 7 Likewise, Reclamation did not attempt to show (and indeed it 8 could not) that the Chart was self-authenticating pursuant to 9 Fed.R.Evid. 902, such that no extrinsic foundation is required. In 10 fact, as with several other of plaintiffs’ proffered reasons for 11 striking this Chart, Reclamation did not dispute this lack of 12 authentication ground. Because a proper foundation has not been 13 laid to authenticate this Chart, the court grants “Plaintiffs’ 14 Motion to Strike Exhibit A to Federal Defendants’ Reply” (Doc. 15 168). Consistent with that ruling, the court will strike the 16 reference to that Chart in Reclamation’s Reply. 17 C. 18 Plaintiffs direct their second motion to strike (Doc. 169) to Pretasky Affidavit & Ninth Circuit Transcript 19 two “extra-record” documents upon which LPMP relies. The first is 20 an affidavit from Michael Pretasky, LPMP’s Chief Executive Officer 21 and a partner in that entity. The second is the transcript from 22 oral argument before the Ninth Circuit appealing this court’s 23 denial of plaintiffs’ motion for a preliminary injunction (“the 24 transcript”). LPMP is offering those two documents strictly with 25 respect to remedies, and the availability of permanent injunctive 26 27 28 9 That Rule makes clear that the “examples of authentication or identification” enumerated therein are “[b]y way of illustration only, and not by way of limitation[.]” Fed.R.Evid. 901(b). - 13 - 1 relief in particular. 2 Plaintiffs are seeking a permanent injunction. 3 they must show “actual success” on the merits. Accordingly, See Winter v. 4 Natural Resources Defense Council, Inc., 555 U.S. ___, ___, 129 5 S.Ct. 365, 381, 172 L.Ed.2d 249, ___ (2008) (citation and internal 6 quotation marks omitted) (“The standard for a preliminary 7 injunction is essentially the same as for a permanent injunction 8 with the exception that the plaintiff must show a likelihood of 9 success on the merits rather than actual success.”) Because the 10 affidavit and transcript which plaintiffs are moving to strike 11 relate solely to the issue of a permanent injunction, it would be 12 premature for the court to consider this particular motion at this 13 juncture. See Sierra Club v. Penfold, 857 F.2d 1038, 1319 (9th Cir. 14 1988) (“Because actual success on the merits was not shown, the 15 district court did not err in denying permanent injunctive 16 relief.”) Only if the court grants summary judgment in plaintiffs’ 17 favor as to one or all of its remaining claims, will plaintiffs be 18 able to show “actual success” on the merits. At that point, the 19 issue of remedies will become germane; and at that point it will 20 become necessary for the court to address this particular motion to 21 strike - but not before. So for now, the court will hold in 22 abeyance plaintiffs’ motion to strike the Pretasky affidavit and 23 the transcript. 24 II. Law of the Case 25 In moving for summary judgment as to Count Two of the FAC, 26 basically plaintiffs argue that the 2007 Final EA does not comport 27 with NEPA. LPMP responds that “[a]ll issues related to Count Two 28 [NEPA] have been repeatedly considered and rejected” by this Court - 14 - 1 and the Ninth Circuit Court of Appeals. LPMP’s Reply (Doc. 166) at 2 11:3-4 (emphasis added); and LPMP’s Cross-mot. (Doc. 157) at 4:15. 3 LPMP thus argues that in the exercise of its discretion the court 4 should apply the law of the case doctrine and grant summary 5 judgment in its favor on “Count[s] II and VI10[.]” LPMP’s Reply 6 (Doc. 166) at 12:14 (footnote added). 7 Plaintiffs’ response is two-fold. First, because LPMP is a 8 defendant-intervenor, plaintiffs challenge its right to invoke the 9 law of the case doctrine when, according to plaintiffs, defendant 10 Reclamation did not. Second, implicitly recognizing that the law 11 of the case doctrine eliminates at least some of their claimed NEPA 12 violations, plaintiffs contend that their preliminary injunction 13 motion “did not encompass all of [such] violations” in Count Two. 14 Pls.’ Reply (Doc. 161) at 1:16 (emphasis added). Thus, plaintiffs 15 argue that the law of the case doctrine does not preclude this 16 court from revisiting Count Two’s alleged NEPA violations. The 17 court will address these arguments in turn. 18 A. 19 Plaintiffs broadly declare that “an intervenor may not raise Intervenor Status 20 arguments not raised by the principal parties.” Pls.’ Resp. (Doc. 21 161) at 4 (citing, inter alia, Time Warner Entertainment Co., L.P. 22 v. F.C.C., 56 F.3d 151 (D.C.Cir. 1995)). Thus, plaintiffs assert 23 that “[b]ecause [BOR] do[es] not invoke the [law of the case] 24 10 25 26 27 28 This is a typographical error in that the FAC only has five sections denoted by Roman numerals; and the “counts” are denoted by Arabic numbers. Even if “VI” is a transposition, i.e., “IV,” it still would make no sense. Count Four is a narrow NEPA violation, i.e. “failure to provide meaningful opportunity for public comment[,]” raised for the first time on these motions. Obviously then, LPMP cannot be invoking the law of the case doctrine as to Count Four. In fact, LPMP does not; its summary judgment argument is based upon the merits, or lack thereof, of that count. See LPMP’s Cross-mot. (Doc. 157) at 19-23; and LPMP’s Reply (Doc. 166) at 19-20. Consequently, the court is disregarding this reference to “count VI.” - 15 - 1 doctrine, Intervenor [LPMP] may not either.” Pls.’ Reply (Doc. 2 161) at 2:6-7 (citations omitted). 3 There are two flaws with this argument. First, contrary to 4 plaintiffs’ assertion, Reclamation does invoke the law of the case 5 doctrine, albeit implicitly. In responding to plaintiffs’ summary 6 judgment motion, Reclamation discusses Lake Pleasant I at some 7 length, concluding that “this Court previously thoroughly discussed 8 and analyzed Reclamation’s evaluation of the carrying capacity of 9 the lake and determined that Reclamation’s actions and analysis 10 were not arbitrary or capricious.” 11 11:3-5 (citation omitted). BOR’s Cross-mot. (Doc. 154) at Similarly, several times in its Reply, 12 Reclamation specifically relies upon earlier findings by this court 13 to bolster its argument that summary judgment in its favor is 14 warranted as to Count Two. For example, Reclamation points out 15 that in Lake Pleasant I this court rejected plaintiffs’ arguments 16 as to Reclamation’s supposed failure to give meaningful 17 consideration to alternatives to the proposed marina. 18 Reply (Doc. 164) at 11-12. See BOR’s As the foregoing shows, despite 19 plaintiffs’ contrary assertion, Reclamation’s cross-motion and 20 reply implicate, albeit inferentially, the law of the case 21 doctrine. Consequently, there is no basis for plaintiffs’ argument 22 that the law of the case doctrine is not implicated here because 23 Reclamation did not invoke that doctrine in the first instance. 24 Second, even if the court agreed with plaintiffs that 25 Reclamation has not raised the law of the case doctrine, as 26 discussed below, that would not preclude LPMP from invoking that 27 doctrine. LPMP could still rely upon the law of the case because 28 the rule prohibiting intervenor’s from raising arguments not raised - 16 - 1 by principal parties is slightly more nuanced than plaintiffs 2 suggest, and their reasoning too simplistic. 3 “It is a general rule that an intervenor may argue only the 4 issues raised by the principal parties and may not enlarge those 5 issues.” See Southwestern Penn. Growth Alliance v. Browner, 121 6 F.3d 106, 121 (3rd Cir. 1997) (citing, inter alia, Vinson v. 7 Washington Gas Light Co., 321 U.S. 489, 498, 64 S.Ct. 731, 735, 88 8 L.Ed. 883 (1944)) (emphasis added). 9 concern here, however. Enlargement of issues is not a In part that is because LPMP is a defendant 10 intervenor, not an intervening plaintiff or petitioner. Thus, 11 because LPMP is defensively asserting the law of the case doctrine, 12 if the court finds that that doctrine governs Count Two, there will 13 be a reduction, if not complete elimination, in the number of 14 issues to be resolved herein. Therefore, rather than enlarging the 15 issues herein, by relying upon the law of the case doctrine, LPMP 16 is seeking to do just the opposite. It is seeking to reduce or 17 eliminate the issues for this court’s consideration. 18 Time Warner, to which plaintiffs cite, is factually and 19 legally distinguishable and hence does not warrant a different 20 result here. In Time Warner, various cable companies and 21 municipalities petitioned the D.C. Circuit Court of Appeals for 22 review of several Federal Communications Commission (“FCC”) 23 regulations. The Court held that the intervenor, a small cable 24 television association, was barred from challenging those 25 regulations on grounds not raised by petitioners where the 26 intervenor had participated in the FCC proceedings, and did not 27 avail itself of the opportunity to file an independent petition for 28 review with the Court. The Time Warner Court stressed that - 17 - 1 “[h]aving foregone that opportunity, the [intervenor] was barred 2 from protesting the [FCC’s] regulations on grounds not presented by 3 the petitioners.” 4 5 case. Time Warner, 56 F.3d at 202. Plainly no such waiver argument can be made in the present Moreover, the law of the case doctrine is not the sort of 6 issue which would have been raised in the context of the 7 Reclamation proceedings at issue herein. In short, because LPMP’s 8 law of the case argument does not broaden the scope of the FAC or 9 alter the nature of the underlying proceedings, LPMP’s intervenor 10 status does not preclude it from arguing that the law of the case 11 doctrine bars the NEPA allegations in Count Two. See Vinson, 321 12 U.S. at 499, 64 S.Ct. 731, 88 L.Ed.2d 883 (“[A]n intervenor is 13 admitted to the proceeding as it stands, and in respect of the 14 pending issues, but is not permitted to enlarge those issues or 15 compel an alteration in the nature of the proceeding.”) 16 B. 17 The law of the case doctrine is “an imminently practical 18 rule[.]” Legal Standards Casumpang v. Int’l Longshoremen’s & Warehousemen’s Union, 19 Local 142, 297 F.Supp.2d 1238, 1249 (D.Haw. 2003). It is a 20 doctrine of “a judicial invention designed to aid in the efficient 21 operation of court affairs.” U.S. v. Lummi Indian, 235 F.3d 443, 22 452 (9th Cir. 2000) (citation and internal quotation marks omitted). 23 “[T]he law of the case doctrine ensures the finality of legal 24 issues decided in an earlier proceeding in the same suit.” 25 Orantes-Hernandez v. Gonzales, 504 F.Supp.2d 825, 836 (C.D.Cal. 26 2007) (citing Arizona v. California, 460 U.S. 605, 619, 103 S.Ct. 27 1382, 75 L.Ed.2d 318 (1983)). Avoiding “reconsideration of 28 questions previously decided . . . during the course of a single - 18 - 1 case” promotes and maintains “consistency[.]” United States v. 2 Mills, 810 F.2d 907, 909 (9th Cir. 1987) (citation omitted). 3 Accordingly, the law of the case doctrine “ordinarily precludes a 4 court from reexamining an issue previously decided by the same 5 court or a higher court in the same case.” Southern Oregon Barter 6 Fair. v. Jackson County, 372 F.3d 1128, 1136 (9th Cir. 2004) 7 (citation omitted). 8 “For the doctrine to apply, the issue in question must have 9 been decided explicitly or by necessary implication in [the] 10 previous disposition.” Lummi Indian, 235 F.3d at 452 (citation and 11 internal quotation marks omitted). “A significant corollary to the 12 [law of the case] doctrine is that dicta have no preclusive 13 effect.” Rebel Oil Co., Inc. v. Atlantic Richfield Co., 146 F.3d 14 1088, 1093 (9th Cir. 1998) (citation and internal quotation marks 15 omitted). Likewise, the “‘law of the case’ does not apply to 16 issues or claims that were not actually decided.” Mortimer v. 17 Baca, 594 F.3d 714, 720 (9th Cir. 2010) (citations and internal 18 quotation marks omitted); cf. Casumpang, 297 F.Supp.2d at 1249 19 (citation and internal quotation marks omitted) (“[D]istrict courts 20 are necessarily free to decide[] issues not otherwise resolved on 21 appeal.”). Given the discretionary nature of the law of the case 22 doctrine, “[a] trial judge’s decision to apply [it] is . . . 23 reviewed for an abuse of discretion.” Lummi Indian, 235 F.3d at 24 452 (citation omitted). 25 Here, LPMP premises its law of the case doctrine argument 26 primarily upon this court’s denial of a preliminary injunction. 27 Precisely because of that, plaintiffs urge that the law of the case 28 doctrine does not apply here. - 19 - 1 Plaintiffs are correct that generally “decisions on 2 preliminary injunctions are not binding at trial on the merits, 3 . . . and do not constitute the law of the case[.]” Jackson 4 County, 372 F.3d at 1136 (citation and internal quotation marks 5 omitted). One reason for that is that typically “a preliminary 6 injunction leaves open the final determination of the merits of the 7 case.” Ranchers Cattlemen Action v. Dept. of Agric., 499 F.3d 8 1108, 1114 (9th Cir. 2007) (citation and internal quotations 9 omitted). Furthermore, “decisions on preliminary injunctions are 10 just that – preliminary – and must often be made hastily and on 11 less than a full record.” Id. (citation and internal quotations 12 omitted). 13 Of course, here, the initial preliminary injunction decision, 14 Lake Pleasant I, 2007 WL 1486869 (D.Ariz. May 21, 2007), and 15 related decisions by this court, Protect Lake Pleasant v. Johnson, 16 2007 WL 2177327 (D.Ariz. July 27, 2007) (“Lake Pleasant II”); and 17 Protect Lake Pleasant v. Johnson, No. CIV 07-454 (D.Ariz. May 5, 18 2008) (Doc. 97) (“Lake Pleasant IV”), were not “made hastily.” 19 More importantly, this is an action brought pursuant to the APA. 20 Therefore, the administrative record is the source of the relevant 21 facts - not an expanded record based upon discovery taken after 22 denial of the preliminary injunction. The same administrative 23 record which is the factual basis for these summary judgment 24 motions was the factual basis at the preliminary injunction phase. 25 Thus, if otherwise warranted, the court will apply the law of the 26 case doctrine here, regardless of the fact that the prior 27 determinations were made in the preliminary injunction context. 28 Insisting that the law of the case doctrine does not entirely - 20 - 1 bar Count Two’s NEPA allegations, plaintiffs stress that previously 2 they only “focus[ed] on BOR’s most glaring [NEPA] failures[.]” See 3 Lake Pleasant I, 2007 WL 1486869, at *6 n. 4 (citation and internal 4 quotation marks omitted) (emphasis added). Plaintiffs further 5 stress that when moving for injunctive relief, they reserved their 6 right to address, inter alia, “additional NEPA violations at the 7 summary judgment stage[,]” Pls.’ Reply (Doc. 161) at 1:19 (citation 8 omitted) (emphasis added), as this court previously noted. 9 Pleasant I, 2007 WL 1486869, at *6 n. 4. Lake Accordingly, plaintiffs 10 contend that because their summary judgment motion “raise[s] . . . 11 [a] number of issues” which were not decided in their earlier 12 preliminary injunction motion, the law of the case doctrine does 13 not apply to these newly raised issues. 14 2:13-14. Pls.’ Reply (Doc. 161) at Plaintiffs list four such issues but they do not expand 15 upon any of them, merely citing to their summary judgment motion 16 instead. 17 Plaintiffs add that the law of the case doctrine does not 18 apply because their summary judgment motion “raises air emissions 19 and public disclosure issues that were not raised in” their earlier 20 preliminary injunction motion. 21 this is irrelevant. Id. at 2:24 - 3:1. While accurate, LPMP confines its law of the case argument to 22 Count Two of the FAC, alleging NEPA violations. LPMP argues the 23 merits, however, of the Clear Air Act and NEPA public disclosure 24 claims. Accordingly, as did LPMP, the court will limit its law of 25 the case analysis to Count Two. 26 After selectively quoting from prior decisions, LPMP broadly 27 pronounces that “[p]laintiffs are making the same arguments, under 28 the same standard, based upon the same set of facts.” - 21 - LPMP’s 1 Cross-mot. (Doc. 157) at 10:10-11. Therefore, “[i]n the interest 2 of judicial economy,” LPMP maintains that the law of the case 3 doctrine “preclude[s] Plaintiffs from re-litigating these same 4 arguments[.]” Id. at 11:2-4. LPMP merely string cites to prior 5 decisions,11 and then objects to what it characterizes as an 6 “unsuccessful[]” attempt by plaintiffs “to repackage previously 7 decided issues by alleging four ‘new’ NEPA violations.” 8 Reply (Doc. 166) at 12:5-6 (citations omitted). LPMP’s LPMP did not 9 specifically identify any of the issues which purportedly were 10 decided earlier in this litigation. Nor did LPMP explain precisely 11 the impact of prior court rulings on plaintiffs’ summary judgment 12 motion. 13 This lack of analysis is troublesome to say the least. Compounding this lack of analysis was plaintiffs’, for the 14 most part unsuccessful, attempt to reframe issues in their reply to 15 suggest that those issues had not previously been decided. A 16 thorough analysis of the law of the case doctrine by the parties 17 would have been preferable; and the lack of one made this court’s 18 task unnecessarily arduous. Nevertheless, keeping in mind the 19 underlying purpose of that doctrine – judicial efficiency - the 20 court has carefully compared plaintiffs’ summary judgment arguments 21 to prior Lake Pleasant decisions. That comparison shows, as fully 22 discussed below, that some of plaintiffs’ current, “additional” 23 issues are, as LPMP declares, “repackage[d]” versions of NEPA 24 issues which this court as previously decided. See LPMP’s Reply 25 26 27 28 11 LPMP also cites to the “Attachment to Civil Appeals Docketing Statement” plaintiffs filed on appeal. See LPMP’s Reply (Doc. 166) at 12:10. LPMP asserts that that Docketing Statement, along with the four prior Lake Pleasant decisions, “all addressed the issues that Plaintiffs claim were not previously raised[.]” Id. at 12:10-11 (emphasis added). It is incongruous to even suggest that a Docketing Statement addresses issues. - 22 - 1 (Doc. 166) at 12:6. Other issues are not, however. So although 2 the law of the case doctrine has some applicability here, it is 3 not, as LPMP contends a complete bar to the NEPA claims in Count 4 Two. 5 6 C. New or Supplemental EIS The first “additional” NEPA issue which plaintiffs claim is 7 not subject to the law of the case is Reclamation’s alleged 8 improper failure to prepare a new EIS or a supplemental EIS 9 (“SEIS”12). Based upon what plaintiffs characterize as “dramatic 10 changes in the Lake’s environment” since the issuance of the 1984 11 EIS, they argue that NEPA regulations mandate that Reclamation 12 prepare a SEIS. Pls.’ Mot. Summ. J. (Doc. 150) at 11:2. Because 13 Reclamation did not prepare a SEIS, plaintiffs are seeking summary 14 judgment on this aspect of Count Two. 15 Unlike some of the NEPA issues plaintiffs’ summary judgment 16 motion raises, this is the first time that they are arguing a NEPA 17 violation based upon Reclamation’s failure to prepare a SEIS. 18 Necessarily then, that SEIS issue has not already been decided. 19 The law of the case doctrine, therefore, does not limit the court’s 20 ability to consider whether Reclamation should have issued a SEIS 21 due to changed circumstances. 22 Before continuing, the court must address one discrete aspect 23 of this SEIS issue – - plaintiffs’ assertion that the Lake has 24 become a breeding ground for bald eagles, and on that basis 25 Reclamation had an obligation under NEPA to issue a SEIS. This is 26 not the first time the bald eagle issue has arisen in this 27 12 28 For the sake of brevity, unless necessary to distinguish between the new EIS and the SEIS, “SEIS” shall be read as encompassing both a new EIS and a SEIS. - 23 - 1 litigation. Thus, from defendants’ viewpoint the court should not 2 revisit the bald eagle issue now. 3 While analyzing plaintiffs’ carrying capacity argument in Lake 4 Pleasant I, this court stated: 5 Bald eagle nesting in an area of LPRP was addressed in the 1984 EIS and more recently in the 2007 EA, . . . , and Plaintiffs have claimed that BOR did not take a ‘hard look’ at the impact of the proposed marina on the bald eagles or other endangered species populations in the park. 6 7 8 9 Id., 2007 WL 1486869, at *10 n. 9 (emphasis added) (citation 10 omitted). Relying upon that footnote, LPMP states that “this Court 11 acknowledged the Final EA’s discussion of the eagle issue and found 12 that BOR did not act arbitrarily or capriciously.” 13 (Doc. 166) at 12 n.4 (citation omitted). LPMP’s Reply On that basis, LPMP 14 asserts that the law of the case precludes consideration of the 15 “‘catch all’ NEPA issue . . . relat[ing] to the Bald Eagle.” 16 LPMP is reading that footnote far too expansively. Id. As just 17 explained, plaintiffs’ claim that NEPA requires a SEIS based upon 18 changed circumstances, including the bald eagle breeding grounds, 19 was not an issue in Lake Pleasant I. So clearly this court did not 20 decide that issue - explicitly or implicitly. The court thus 21 rejects LPMP’s suggestion that the mention of bald eagles in Lake 22 Pleasant I forecloses consideration, under the law of the case 23 doctrine, of the bald eagle issue as it relates to a SEIS. 24 Moreover, at most, footnote nine was dicta and as such it will not 25 be given preclusive effect as the law of the case. See Rebel Oil, 26 146 F.3d at 1093. 27 D. 28 Plaintiffs further contend that the law of the case doctrine Final EA’s “Inaccurate Data and Guesswork” - 24 - 1 does not apply to the issue of “the Final EA’s improper reliance on 2 inaccurate data and guesswork about watercraft usage at the Lake 3 and various environmental impacts of the proposed marina, including 4 the addition of human waste and resulting contaminants into the 5 water[.]” Pls.’ Reply (Doc. 161) at 2:17-20. Referring to 6 plaintiffs’ summary judgment motion for clarification, plaintiffs 7 claim that there is no basis for the “20% daily [watercraft] usage 8 rate” in the Final EA. Pls.’ Mot. Summ. J. (Doc. 150) at 15:6 9 (internal quotation marks omitted). Plaintiffs also contend that 10 the Final EA’s provision for a marina “pump-out system to remove 11 waste from boats[]” is an insufficient response to “[p]ublic 12 comment to the Draft EA warn[ing] that an increase in boat usage 13 would increase the amount of human waste and resulting contaminants 14 being deposited in the Lake.” Id. at 16:3 (citation and internal 15 quotation marks omitted); and at 15:24-25 (citations omitted). 16 Comparing these two issues with the prior rulings in this action 17 shows that neither has been previously decided - either explicitly 18 or by necessary implication. Thus, as explained below, the law of 19 the case doctrine does not preclude plaintiffs’ NEPA claims to the 20 extent they are challenging the basis for the Final EA’s 20% daily 21 usage rate assumption, and the pump-out system provision. 22 In denying plaintiffs’ motion for a preliminary injunction in 23 Lake Pleasant I, this court held that “there is no basis to find 24 that BOR’s determination of average daily watercraft counts was 25 arbitrary and capricious.” 26 *12. Lake Pleasant I, 2007 WL 1486869, at Initially, this holding might appear to encompass plaintiffs’ 27 current argument that the Final EA lacks a basis for its 20% daily 28 usage rate assumption. A close reading of Lake Pleasant I shows - 25 - 1 that this court did not decide that particular usage rate issue, 2 however. Rather in that decision, the court addressed plaintiffs’ 3 narrowly tailored argument that “the EA inadequately explains BOR’s 4 decision to ignore evidence in the administrative record that, on 5 the weekend of July 4, 2006, over 3,000 boats were on the lake.” 6 Id. at *11 (citation omitted). In fact, plaintiffs’ preliminary 7 injunction motion did not mention at all this ostensibly baseless 8 20% daily usage rate assumption. 9 Admittedly, in that prior motion plaintiffs did note in 10 passing, as they do again now, Reclamation’s “failure to account 11 for boats to be stored in the 5-acre fenced-in area at the marina 12 when it estimated the number of boats using the Lake.” Pls.’ Mot. 13 (Doc. 12) at 15 n. 11; and Pls.’ Mot. (Doc. 15) at 15:11-15 14 (citation omitted). That alleged failure did not factor into the 15 court’s analysis in Lake Pleasant I. As just mentioned, there, the 16 court’s focus was upon the alleged uncertainty of daily average 17 watercraft counts during peak season, and more particularly, on the 18 weekend of July 4, 2006. Consequently, plaintiffs’ current 19 challenge to Reclamation’s “‘20% daily usage rate’ assumption” was 20 not decided by necessary implication either. For these reasons, 21 the law of the case doctrine is not a bar to plaintiffs’ claim that 22 there is no basis for the Final EA’s 20% daily usage rate 23 assumption. In deciding these summary judgment motions, the court 24 thus will address that particular usage rate issue on the merits. 25 The same reasoning applies to plaintiffs’ current argument 26 that the Final EA violates NEPA because the “pump-out system” is an 27 inadequate response to public comment that there will be an 28 increase in human waste deposits in the Lake due to an increase in - 26 - 1 watercraft usage. This court has not before been confronted with 2 that issue, so obviously it has not decided that issue 3 explicitly or implicitly. - Because the law of the case doctrine is 4 not implicated as to that pump-out system issue, the court will 5 address that issue on the merits. 6 E. 7 Plaintiffs’ reply identifies two additional issues which they Final EA’s “Baseless Speculation” 8 contend are not governed by the law of the case. In particular, 9 the Final EA “improper[ly] reli[ed] on baseless speculation” 10 regarding (1) the “purported need for another marina[;]” and 11 (2) the amount of additional watercraft that the proposed marina 12 will add to the Lake[.]” Pls.’ Reply (Doc. 161) at 2:20-21. 13 Separately examining these issues in conjunction with Lake Pleasant 14 I shows that, with one exceedingly narrow exception, the law of the 15 case doctrine does not foreclose consideration of those issues now. 16 Turning to plaintiffs’ summary judgment motion for 17 elucidation, it is evident that plaintiffs’ attack on the 18 “purported need for another marina” is part of their broader 19 argument that “[t]he Final EA’s rejection of the ‘no action’ 20 alternative is based upon speculation[.]” Pls.’ Mot. (Doc. 150) at 21 16 (emphasis omitted). This court did address that “No Action 22 Alternative” in Lake Pleasant I, finding that “the [Final] EA 23 sufficiently consider[ed]” that alternative. 24 WL 1486869, at *13. Lake Pleasant I, 2007 Despite that seemingly broad finding, a 25 careful reading of plaintiffs’ preliminary injunction motion and 26 Lake Pleasant I shows the relatively narrow basis for that finding. 27 The only argument that plaintiffs made regarding the “No 28 Action Alternative” in Lake Pleasant I is that Reclamation’s - 27 - 1 consideration of that alternative was “not meaningful[] because 2 Reclamation did not analyze current waiting times by visitors or 3 whether those times are acceptable to the lake’s visitors.” 4 *12 (citing Mot. (doc. #12) at 17-18). Id. at Addressing that discrete 5 argument, this court explained: 6 7 8 9 Although the EA does not set forth exact figures for the waiting times at the public boat ramps or poll results regarding visitors' satisfaction with the waiting times, the EA's conclusions regarding increased waiting times under the “no action” option are reasonable in light of the increased visitation numbers that have been documented. 10 Id. at *13 (citation omitted). As just shown, in Lake Pleasant I, 11 this court did address the “No Action Alternative,” but in the 12 narrowly circumscribed context of waiting times. Plaintiffs did 13 not raise, and hence the court did not consider, their current 14 challenges to the “No Action” Alternative, which include disputing 15 the need for a new marina, and two other objections unrelated to 16 waiting times, discussed herein. Thus, the law of the case 17 doctrine does not bar these three most recent objections to the 18 Final EA’s elimination of the “No Action” Alternative. 19 Plaintiffs’ reply also does not explain what is meant by the 20 assertion that the Final EA “improper[ly] reli[ed] on baseless 21 speculation . . . about the amount of additional watercraft that 22 the proposed marina will add to the Lake[.]” Pls.’ Reply (Doc. 161) 23 at 2:21-22. Nor is plaintiffs’ summary judgment motion 24 particularly helpful. This asserted “speculation” as to the 25 “amount of additional watercraft” can be read as just another 26 iteration of plaintiffs’ theory that “BOR acted arbitrarily and 27 capriciously by allowing an increase in the number of boats on the 28 Lake without first determining the Lake’s carrying capacity.” - 28 - 1 Pls.’ Mot. (Doc. 150) at 12:25-56. 2 that As more fully discussed below, carrying capacity argument has been thoroughly considered and 3 rejected several times during the course of this litigation. 4 Therefore, the law of the case doctrine clearly precludes 5 reconsideration of any form of that argument now. 6 On the other hand, it is possible to read plaintiffs’ claim of 7 “baseless speculation” regarding additional watercraft as 8 incorporating plaintiffs’ theory that the Final EA does not include 9 a basis for the “‘20% daily usage rate’ assumption[.]” 10 15:6. See id. at The law of the case doctrine does not bar consideration of 11 that particular issue because, as already discussed, that issue has 12 not been previously decided. 13 F. 14 The list of purportedly new or additional NEPA violations Final EA’s “Various Other Infirmities” 15 in plaintiffs’ reply includes a catch-all category, i.e. “various 16 other infirmities in the Final EA’s analysis of the proposed 17 marina.” Pls.’ Reply (Doc. 161) at 2:22-23 (citation omitted). 18 Plaintiffs’ reply does not identify or describe the exact nature of 19 those “infirmities,” leaving the court to once again extrapolate 20 from their summary judgment motion. When it does that, the court 21 finds that those “various other infirmities,” in general, pertain 22 to the Lake’s capacity and the Final EA’s consideration of 23 alternatives to the proposed marina. 24 25 1. Carrying Capacity Plaintiffs maintain that “BOR acted arbitrarily and 26 capriciously by allowing an increase in the number of boats on the 27 Lake without first determining the Lake’s carrying capacity.” 28 Pls.’ Mot. (Doc. 150) at 12:25-56. - 29 - Undoubtedly, plaintiffs have 1 made this carrying capacity argument before. In fact, as LPMP 2 accurately states, this is now the fifth time plaintiffs have made 3 this argument. Each time, regardless of context, this argument has 4 been soundly rejected – three times by this court, see Lake 5 Pleasant I, 2007 WL 1486869, at *6 - *11; Lake Pleasant II, 2007 WL 6 2177327, at *4 - *6; Lake Pleasant IV, 2:07-cv-00454-RCB (Doc. 97) 7 at 22-25; and once by the Ninth Circuit. 8 252 Fed.Appx. at 858-859. See Lake Pleasant III, What is more, plaintiffs are not 9 suggesting that any of the three exceptions to the law of the case 10 doctrine apply here.13 11 nothing whatsoever. 12 at 24:21. Once again, “‘[n]othing has changed[]” – Lake Pleasant IV, 2:07-cv-00454-RCB (Doc. 97) Consequently, based upon the law of the case, LPMP and 13 Reclamation are entitled to summary judgment as to Count Two 14 insofar as it alleges NEPA violations for failure to conduct a 15 carrying capacity study. 16 17 2. “Post-construction Study” Plaintiffs’ summary judgment motion includes another familiar 18 argument. They assert that “a post-construction study of 19 watercraft usage at the Lake is no substitute for a pre20 construction capacity study[.]” Pls.’ Mot. (Doc. 150) at 13:1-2 21 (emphasis omitted). This is just another way of arguing, as 22 plaintiffs have before, “that the County’s obligation to conduct a 23 future WROS [Water Recreation Opportunity Spectrum] study is 24 insufficient to satisfy BOR’s NEPA obligations.” 25 II, 2007 WL 2177327, at *6. See Lake Pleasant In Lake Pleasant II, the court 26 27 28 13 Those exceptions are “when (1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial.” Mortimer v. Baca, 594 F.3d 714, 721 (9th Cir. 2010) (citations and internal quotation marks omitted). - 30 - 1 discussed and rejected that argument, distinguishing plaintiffs’ 2 primary authority, LaFlamme v. FERC, 852 F.2d 389 (9th Cir. 1988) 3 (“LaFlamme”), on several grounds. 4 See id. To be sure, plaintiffs are no longer relying upon LaFlamme. 5 But they also are not arguing that any of the exceptions to the law 6 of the case doctrine apply, such as “intervening controlling 7 authority mak[ing] reconsideration appropriate[.]” See Mortimer, 8 594 F.2d at 721 (citations and internal quotation marks omitted). 9 Thus, because this court has already rejected plaintiffs’ argument 10 that a future WROS study by the County does not satisfy NEPA, as 11 with their carrying capacity argument, the law of the case governs 12 here too. As a result, LPMP and Reclamation also are entitled to 13 summary judgment as to Count Two insofar as it alleges a NEPA 14 violation based upon the failure to conduct a pre-construction 15 capacity study of the Lake. 16 17 3. Alternatives In moving for summary judgment, plaintiffs assert that “the 18 Final EA does not adequately consider alternatives to the proposed 19 marina[]” as NEPA requires. Pls.’ Mot. (Doc. 150) at 16:8-9 20 (emphasis omitted). The Final EA considered three alternatives to 21 the proposed marina. The first, the “No Action Alternative,” is 22 self-explanatory: the proposed marina would not be built. The 23 second alternative, the “Proposed Action alternative,” called for 24 the development of Scorpion Bay Marina in four phases. 25 Vol. 3 (Final EA14) at 8-9. Admin. R., “[A]t total build-out,” that proposed 26 marina complex would consist of, among other things, a “200 boat 27 14 28 Hereinafter, unless otherwise stated, all references to the administrative record shall be read as referring to volume three, and the Final EA more particularly. - 31 - 1 capacity,” and “an 800-slip wet dock[.]” Id. at 9. “Alternative 2 A” was a slightly scaled down version of the Proposed Action, 3 entailing only three phases of construction and resulting in a 4 “storage capacity for 804 watercraft at full build-out.” Id. 5 (FONSI) at 3. 6 Plaintiffs argue that Reclamation violated NEPA because: 7 (1) it eliminated the No Action Alternative “based upon 8 speculation[;]” (2) Alternative A is “not sufficiently different 9 from the proposed marina to constitute a meaningful alternative[;]” 10 and (3) it “improperly eliminated from consideration the 11 alternative of allowing” expansion of the existing marina. Pls.’ 12 Mot. Summ. J. (Doc. 150) at 16:19-20; 17:16-17; and 18:15-16 13 (emphasis omitted). 14 Much like they are now, plaintiffs previously argued that the 15 “BOR did not give meaningful consideration to alternatives to the 16 proposed marina.” Lake Pleasant I, 2007 WL 1486869, at *12 (citing 17 Mot. (Doc. 12) at 17-20). Therefore, to determine whether the law 18 of the case bars any of plaintiffs’ current arguments regarding 19 alternatives, the court must carefully examine plaintiffs’ earlier 20 arguments as to alternatives, as well as the court’s prior 21 decisions – an analytical step which neither LPMP nor plaintiffs 22 undertook. 23 24 a. “No Action Alternative” Plaintiffs proffer three reasons why Reclamation’s elimination 25 of the No Action Alternative was, in their view, “based upon 26 speculation[.]” See Pls.’ Mot. (Doc. 150) at 16:19-20. The first 27 is that Reclamation improperly “abdicate[d] its “NEPA-imposed 28 obligation to consider and evaluate alternatives to [the] proposed - 32 - 1 action[]” by relying upon the County’s determination of need for a 2 new marina in the first place. Id. at 16:23-24 (citation and 3 internal quotation mark omitted). Second, plaintiffs assert that 4 the Final EA’s elimination of the No Action Alternative is “based 5 on [the] incorrect premise[,]” that “water-based recreational 6 opportunities appear to be limited to those that presently exist.” 7 Id. at 17:2-3 (citation and internal quotation marks omitted). 8 Third, according to plaintiffs, the Final EA contains baseless 9 “speculation” that “taking no action will leave demand for water 10 recreation unmet because, allegedly, the existing . . . Marina will 11 not maintain the quality of its facilities.” 12 Id. at 17:8-10. As LPMP is quick to point out, and as mentioned earlier, this 13 court has already found “that the EA sufficiently consider[ed] the 14 ‘no action’ alternative.” 15 *13. Lake Pleasant I, 2007 WL 1486869, at As already discussed however, and what LPMP overlooks, is 16 that this court’s finding as to the No Action Alternative was made 17 in the specific context of waiting times at public boat ramps, and 18 visitor satisfaction with those times. See id. at *12 - *13. 19 Therefore, the law of the case doctrine does not preclude 20 consideration of plaintiffs’ arguments, enumerated above and made 21 for the first time in this motion, regarding Reclamation’s other 22 alleged improprieties in rejecting the No Action Alternative. 23 The court is well aware, as LPMP also notes, of the Ninth 24 Circuit’s finding that this “court . . . properly concluded that 25 [BOR] gave adequate consideration to other alternatives in its EA.” 26 Lake Pleasant III, 252 Fed. Appx. at 859. That general finding 27 does not change this court’s law of the case analysis as to the No 28 Action Alternative. As just stated, plaintiffs’ arguments as to - 33 - 1 the “No Action” arguments are new. They were not a basis for 2 plaintiffs’ preliminary injunction motion. Likewise, these 3 arguments certainly were not a basis for plaintiffs’ Ninth Circuit 4 appeal or grounds for affirmance by that Court. See Rivera v. 5 National R.R. Passenger Corp., 2004 WL 603587, at *5 (N.D.Cal. Mar. 6 22, 2004) (citation omitted) (refusing to apply law of the case to 7 arguments “made somewhere in the record before the appellate 8 court[]” because “[a]n appellate court is not presumed to have 9 decided issues not presented and argued before it, of issues that 10 were not addressed in its opinion[]”). 11 12 b. “Action Alternative A ” In their summary judgment motion, plaintiffs are challenging 13 the Final EA’s treatment of “Action Alternative A” on two grounds. 14 First, plaintiffs assert that that Alternative “is not sufficiently 15 different from the proposed marina to constitute a meaningful 16 alternative.” Pls.’ Mot. (Doc. 150) at 17:16-17. Second, 17 plaintiffs charge Reclamation with violating NEPA by “narrowly 18 defin[ing]” the “purpose and need” of the proposed marina “so as to 19 winnow down the alternatives until only the desired one 20 survives[,]” i.e. the proposed marina. 21 internal quotation marks omitted).15 Id. at 18:7-8 (citation and A close reading of Lake 22 Pleasant I establishes that the law of the case doctrine forecloses 23 the latter argument, 24 but not the former. In Lake Pleasant I, plaintiffs “argue[d] that BOR . . . 25 impermissibly identified the project objectives in unreasonably 26 narrow terms by deferring to the County and concessionaire’s 27 determination of economic feasibility[.]” Id. at *12; see also 28 15 Reclamation did not specifically address either of these arguments. - 34 - 1 Pls.’ Mot. (Doc. 12) at 18:21-28 - 19:1-2. Rejecting that 2 argument, in Lake Pleasant I, this court “s[aw] nothing arbitrary 3 and capricious in BOR’s . . . eliminat[ing] other alternatives 4 [including Alternative A] from further consideration by relying on 5 the County’s statement of need and economic viability.” 6 Pleasant I, 2007 WL 1486869, at *13. Lake The court emphasized that 7 “the EA makes clear that the proposed marina and associated revenue 8 stream is necessary to assist the County in its management of the 9 park.” 10 Id. (citations omitted). Plaintiffs are making a nearly identical argument in seeking 11 summary judgment. They posit that “[b]y delegating to the County 12 and LPMP authority to determine the need for, and appropriate size 13 of, the proposed marina,” Reclamation so narrowly defined the 14 purpose and scope of that projection that it violated NEPA. 15 Pls.’ Mot. (Doc. 150) at 18:10-11. See As just explained, this court 16 has previously decided that narrowness of purpose issue; hence, the 17 law of the case doctrine precludes reconsideration of that issue. 18 Turning to the issue of whether Alternative A is a “meaningful 19 alternative[,]” plaintiffs note that there are “few differences” 20 between that Alternative and the proposed marina. Pls.’ Mot. (Doc. 21 150) at 17:25. Alternative A “would consist of three of the four 22 phases of the proposed marina,” resulting in roughly 200 fewer 23 spaces for watercraft than the proposed marina. Id. at 17: 24-25. 24 Plaintiffs also stress that, according to the EA, the potential 25 environmental impact between Alternative A and the proposed marina 26 is “essentially the same, if not identical[.]” Id. at 17:27-28 27 18:1. 28 Plaintiffs made this same argument in Lake Pleasant I. - 35 - See 1 Lake Pleasant I, 2007 WL 1486869, at *12 (emphases added) 2 (“Plaintiffs maintain that [] - a marina adding 196 fewer boats and 3 deemed to have essentially the same environmental impact as the 4 proposed marina - does not constitute a meaningful alternative.”); 5 and (Plaintiffs “argue that BOR’s resulting consideration of a 6 nearly identical marina plan with the essentially same 7 environmental impact as the proposed marina is inadequate.”) 8 Further, then, as now, Muckleshoot Indian Tribe v. U.S. Forest 9 Serv., 177 F.3d 800, 813 (9th Cir. 1999), was the primary legal 10 support for this argument. See Pls.’ Mot. (Doc. 12) at 18:8-11; 11 and Pls.’ Mot. (Doc. 150) at 18:2-7. 12 Significantly, though, the court did not address that 13 argument. As quoted above, the court merely reiterated plaintiffs’ 14 position as set forth in their preliminary injunction motion. 15 Instead, in Lake Pleasant I, the court focused on the economic 16 viability arguments to the exclusion of plaintiffs’ argument that 17 Alternative A was not a meaningful alternative. Thus, because this 18 court has not previously resolved that discrete issue, either 19 explicitly or implicitly, the law of the case doctrine does not 20 “limit[] the court’s ability to consider th[at] issue now.” See 21 Orantes-Hernandez v. Gonzales, 504 F.Supp.2d 825, 836-37 (C.D.Cal. 22 2007) (“Because the government’s argument regarding the relevance 23 of conditions in El Salvador was not addressed in Orantes III, 24 either explicitly or implicitly, the court cannot accept 25 plaintiffs’ argument that . . . the ‘law of the case’ doctrine 26 limits the court’s ability to consider the issue now.”), aff’d 27 without pub’d opinion, 321 Fed.Appx. 625 (9th Cir. 2009). And, as 28 explained in the preceding section, the Ninth Circuit’s finding - 36 - 1 that this court “properly concluded that [Reclamation] gave 2 adequate consideration to other alternatives in its EA[,]” Lake 3 Pleasant III, 252 Fed.Appx. at 859, likewise does not alter the law 4 of the case analysis as to Alternative A. 5 In sum, as to Alternative A, the law of the case doctrine 6 precludes reconsideration of plaintiffs’ argument that Reclamation 7 so narrowly defined the scope and purpose of the proposed marina as 8 to violate NEPA. By the same token, though, that doctrine does not 9 preclude this court from addressing plaintiffs’ argument that 10 Alternative A was not a meaningful alternative. 11 12 c. Expansion of Existing Marina Plaintiffs’ last argument regarding alternatives is that 13 the Final EA gave “virtually no consideration at all” to allowing 14 expansion of the existing Pleasant Harbor Marina; and thus, 15 Reclamation “improperly eliminated” that alternative. 16 (Doc. 150) at 18:15-16 (emphasis omitted). Pls.’ Mot. Plaintiffs declare that 17 “[w]ithout explanation, the Final EA simply asserts, . . . that 18 ‘[a]lternative marina proposals not associated with the County 19 would not satisfy the purpose and need for the project.’” Id. at 20 18:18-21 (quoting Admin. R., at 17). 21 Plaintiffs made this same argument in Lake Pleasant I. There, 22 also relying upon the just quoted sentence from the Final EA, 23 plaintiffs argued that Reclamation “flat ignored” the expansion 24 alternative. Pls.’ Mot. (Doc. 12) at 18:13-14; and at 18:21-23. 25 In Lake Pleasant I, 2007 WL 1486869, at *13, this court found it 26 “apparent that BOR did not find th[at] [expansion] option[] 27 feasible in light of the EA’s statement of purpose and need for the 28 marina.” Lake Pleasant I, 2007 WL 1486869, at *13. - 37 - This court 1 also found, as discussed above, that Reclamation did not act 2 arbitrarily or capriciously in “relying on the County’s statement 3 of need and economic viability[]” when “eliminat[ing] other 4 alternatives from further consideration[.]” Id. The court reasoned 5 that “the [Final] EA makes clear that the proposed marina and 6 associated revenue stream is necessary to assist the County in its 7 management of the park.” Id. (citation omitted). In deciding that 8 Reclamation properly relied upon the County’s statement of need and 9 economic viability, by necessary implication, the court decided 10 that Reclamation’s reasoning for eliminating the expansion 11 alternative was sufficient. 12 Noting “that Plaintiffs have not demonstrated at this stage 13 any reasonable probability of success on the merits of their claim 14 that Reclamation did not adequately consider alternatives to the 15 proposed marina[,]” this court did leave open the possibility that 16 plaintiffs could prevail on such a claim later in this litigation. 17 See id. (emphasis added). Renewal of a previously unsuccessful 18 argument is not a sufficient reason for the court to deviate from 19 its prior findings, however. Therefore, for the reasons set forth 20 above, the law of the case precludes reconsideration of the issue 21 of whether Reclamation improperly eliminated from consideration the 22 expansion alternative. 23 Since moving for a preliminary injunction, plaintiffs have 24 painstakingly “scour[ed] the record” to identify what they deem to 25 be other NEPA violations beyond “BOR’s most glaring failures[,]” 26 which were the basis for that unsuccessful motion. See Lake 27 Pleasant II, 2007 WL 2177327, at *4 and at *3 (citation and 28 internal quotation marks omitted). - 38 - Not all of these recently 1 identified NEPA violations are new, however. For the reasons 2 discussed above, despite plaintiffs’ stubborn insistence, the law 3 of the case forecloses consideration of the following alleged NEPA 4 violations: (1) Reclamation’s failure to conduct a carry capacity 5 study; (2) Reclamation’s failure to conduct a pre-construction 6 capacity study; (3) Reclamation’s narrow definition of the scope 7 and purpose of the proposed marina; and (4) Reclamation’s 8 elimination of the expansion alternative. Consequently, 9 Reclamation and LPMP are entitled to summary judgment in that 10 regard. 11 III. 12 NEPA Next, the court will address the NEPA claims not foreclosed 13 by the law of the case doctrine. The first such claim is that 14 Reclamation violated NEPA by failing to complete a SEIS.16 15 A. 16 Count Two of the FAC broadly alleges, inter alia, that “BOR New or Supplemental EIS 17 violated NEPA by failing to prepare an EIS for the proposed 18 [marina].” FAC (Doc. 4) at 22, ¶ 103:19-20. Plaintiffs are taking 19 a different tack on summary judgment though. Claiming that because 20 “conditions at the Lake have changed dramatically in the [25] years 21 since” issuance of the 1984 EIS, plaintiffs argue that Reclamation 22 had a duty under NEPA, which it did not fulfill, to issue a SEIS. 23 Pls.’ Mot. (Doc. 150) at 10:2-3 (citation and footnote omitted). 24 Purportedly, those changes are an increase in the Lake’s size and 25 volume, and that the Lake and its environs have “become one of the 26 most productive breeding grounds for eagles in the state.” Id. at 27 16 28 LPMP joins in and incorporates by reference Reclamation’s arguments. LPMP’s Cross-mot. (Doc. 157) at 11:5-8. Therefore, all references to Reclamation in this section shall be read to include LPMP as well. - 39 - 1 11:1 (citations omitted). Recognizing that the Final EA is tiered17 2 to the 1984 EIS,18 plaintiffs further argue that that tiering does 3 not “excuse” Reclamation from preparing a SEIS. Id. at 10:2-4 4 (citation and footnote omitted). 5 Readily conceding that “[d]ramatic changes have occurred at 6 Lake Pleasant with the construction of the New Waddell Dam,” 7 Reclamation responds that because those were “not new or 8 unanticipated[,]” it had no obligation under NEPA to issue a SEIS. 9 BOR’s Cross-mot. (Doc. 154) at 11:21-22; and 12:1. Moreover, 10 according to Reclamation, those changes “were anticipated and 11 implemented in each document utilized in preparing the Final EA[.]” 12 Id. at 11:24. Essentially, Reclamation contends that it did not 13 act arbitrarily or capriciously by not issuing a SEIS. 14 15 1. Scope Preliminarily the court must clarify the scope of plaintiffs’ 16 “changed circumstances” argument. As discussed in conjunction with 17 the law of the case, from plaintiffs’ standpoint, one of the 18 purported changed circumstances is that since 1984 the Lake and its 19 environs have “become one of the most productive breeding grounds 20 for eagles in the state.” 21 (citations omitted). Pls.’ Mot. (Doc. 150) at 10:25-11:1 Elaborating, plaintiffs claim that “a 22 substantial question has arisen in recent years about whether the 23 desert nesting bald eagle, . . . , should be considered a separate 24 25 26 27 28 17 Broadly defined, “[t]iering refers to the coverage of general matters in broader [EISs] . . . with subsequent narrower statements or environmental analyses.” 40 C.F.R. § 1508.28. 18 See Lake Pleasant III, 252 Fed. Appx. at 858 (“Final EA was tiered to an . . . EIS”); and Lake Pleasant I, 2007 WL 1486869, at *8 (citation omitted) (“Final EA . . . is tiered to the 1984 EIS[]”); and Pls.’ Mot. (Doc. 150) at 10:1 (“[T]he Final EA is ‘tiered’ to the 1984 EIS[.]”) - 40 - 1 species . . . [u]nder the Endangered Species Act (“ESA”)[.]” Pls.’ 2 Reply (Doc. 162) at 4:10-15 (citations omitted). Plaintiffs 3 further note that during the course of this litigation, the United 4 States Forest Service has “re-listed the desert nesting bald eagle 5 as threatened effective May 1, 2008.”19 Id. at 4-5, n. 1 (citation 6 and internal quotation marks omitted). Indeed, plaintiffs devote 7 the bulk of their changed conditions argument to bald eagles. 8 Reclamation astutely retorts that the FAC does not “claim or 9 mention the [ESA] or potential failure to consider the impacts of 10 the project on the bald eagle[.]” BOR’s Reply (Doc. 164) at 6:6-8. 11 Reclamation, therefore, argues that the court should “dismiss[]” 12 plaintiffs’ claim, raised for the first time in their summary 13 judgment motion, that NEPA mandated the issuance of a SEIS because 14 of changes effecting the “bald eagle population in the Lake 15 Pleasant area.” 16 Id. at 6:5-8. An examination of the FAC readily shows the validity of 17 Reclamation’s position. Nowhere in the FAC is there any mention of 18 bald eagles or the ESA. Thus, to the extent plaintiffs are arguing 19 a NEPA violation because Reclamation did not issue a SEIS after 20 supposedly the Lake Pleasant environs became a breeding ground for 21 bald eagles, Reclamation and LPMP are entitled to summary judgment 22 on that narrow claim. See Richter v. Mutual of Omaha Ins. Co., 23 2007 WL 6723708, at *6 n.5 (C.D.Cal. Feb. 1, 2007) (citation 24 omitted) (granting defendant summary judgment on alleged Health 25 Insurance Portability and Accountability Act (“HIPPA”) violations 26 because such violations could not “form the basis of Plain[tiffs’] 27 19 28 That “delist[ing]” did not occur until after the issuance of the 2007 Final EA in this matter, as Reclamation is quick to note. BOR’s Reply (Doc. 164) at 7:4 (citations omitted). - 41 - 1 unfair business practices claim because [they] never raised HIPPA 2 in the Complaint[]”); see also Rastelli Brothers Inc. v. 3 Netherlands Ins. Co. T/A Peerless Inc., 68 F.Supp.2d 440, 447 4 (D.N.J. 1999) (footnote omitted) (rejecting plaintiff’s argument 5 for summary judgment on an insurance coverage issue because it 6 could not “seek summary judgment on an issue . . . never raised in 7 the Complaint[]”). Accordingly, the court will limit its 8 discussion of assertedly “changed circumstances” to the Lake’s 9 increase in size and volume and expansion of the size of the 10 proposed marina. 11 12 2. Governing Legal Standards “[A]n agency that has prepared an EIS cannot simply rest on 13 the original document.” 14 552, 557 (9th Cir. 2000). Friends of Clearwater v. Dombeck, 222 F.3d That is because “NEPA . . . imposes on 15 federal agencies an ongoing duty to issue supplemental 16 environmental analyses.” Cold Mountain v. Garber, 375 F.3d 884, 17 892 (9th Cir. 2004) (citation omitted). That ongoing duty demands 18 that an agency “be alert to new information that may alter the 19 results of its original environmental analysis, and continue to 20 take a “hard look at the environmental effects of [its] planned 21 action, even after a proposal has received initial approval.’” 22 Friends of Clearwater, 222 F.3d at 557 (quoting Marsh v. Or. 23 Natural Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 24 L.Ed.2d 377 (1989)). 25 The duty to supplement under NEPA is not without limits. 26 “[A]n agency need not start the environmental process anew with 27 every change in the project.” Price Rd. Neighborhood Ass’n v. U.S. 28 Dept’ of Transp., 113 F.3d 1505, 1509 (9th Cir. 1997) (citing Marsh, - 42 - 1 490 U.S. at 373, 109 S.Ct. at 1859). The Supreme Court in Marsh 2 soundly reasoned that there is no need to “supplement an EIS every 3 time new information comes to light after the EIS is finalized. To 4 require otherwise would render agency decisionmaking intractable, 5 always awaiting updated information only to find the new 6 information outdated by the time a decision is made.” Marsh, 490 7 U.S. at 373, 109 S.Ct. 1851 (footnote omitted). 8 On the other hand, “[i]f there remains major Federal action to 9 occur, and the new information is sufficient to show that the 10 remaining action will affect the quality of the human environment 11 in a significant manner or to a significant extent not already 12 considered, a supplemental EIS must be prepared.” Id. at 374, 109 13 S.Ct. 1851 (citations and quotations omitted) (emphasis added). 14 That same obligation to supplement exists where, as here, “[a]n 15 agency has prepared an EA and issued a FONSI[.]” See Oregon Natural 16 Resources Council Action v. U. S. Forest Serv., 445 F.Supp.2d 1211, 17 1219 (D.Or. 2006) (“ONRC”) (quoting 40 C.F.R. § 1502.9(c)(1)(ii)) 18 (other citation omitted). Further, “[t]he decision whether to 19 supplement is governed by the same standard which applies to 20 preparing an EIS[.]” Tri-Valley Cares v. U.S. Dept. of Energy, 2009 21 WL 347744, at *24 (N.D.Cal. Feb. 9, 2009). As with other NEPA 22 mandates, “[a]n agency’s decision not to prepare an EIS or other 23 supplemental NEPA analysis may be overturned only if it was 24 arbitrary, capricious, an abuse of discretion, or otherwise not in 25 accordance with law.” Cold Mountain, 375 F.3d at 892 (citations 26 omitted). 27 28 a. “Major Federal Action” As just alluded to, an agency’s obligation to supplement its - 43 - 1 NEPA analysis is predicated upon the existence of a “major federal 2 action[] ‘significantly affecting the quality of the human 3 environment.’” Cold Mountain, 375 F.3d at 892 (quoting 42 U.S.C. 4 § 4332(2)(C)) (emphasis added). In other words, “supplementation 5 is necessary only if “there remains ‘major federal actio[n]’ to 6 occur,’ as that term is used in § 4332(2)(C).” Norton v. Southern 7 Utah Wilderness Alliance, 542 U.S. 55, 73, 124 S.Ct. 2373, 159 8 L.Ed.2d 137 (2004) (“SUWA”) (quoting Marsh, 490 U.S. at 374, 109 9 S.Ct. 1851) (emphasis added). 10 Reclamation does not suggest, much less argue, that it need 11 not supplement the 1984 EIS because no “‘major Federal actio[n]’ 12 [remains] to occur[.]” See Marsh, 490 U.S. at 374, 109 S.Ct. at 13 1859 (quoting 42 U.S.C. § 4333(2)(C)). Assuming, as did 14 Reclamation, that the “major federal action” element is met here,20 15 20 16 17 18 19 20 21 22 23 24 25 26 27 28 The court observes that it is debatable whether a major federal action remains to occur here. If, as plaintiffs state in their reply, the Scorpion Bay Marina was merely a “proposed marina . . . to be constructed on land owned by the [BOR], and its construction [still] require[d] BOR approval[,]” Pls.’ Reply (Doc. 162) at 1:27-28 - 2:1 (citation omitted) (emphasis added), then, almost certainly, there would be a major federal action within the meaning of section 4333(2)(C). See, e.g., Marsh, 490 U.S. at 385, 109 S.Ct. 1851 (major federal action remained to occur where dam construction project giving rise to environmental review was only a third complete). Despite plaintiffs’ depiction of the Scorpion Bay Marina, it is not “proposed[,]” awaiting construction. That Marina is and has been a reality for some time. In accordance with Fed. R. Evid. 201, the court takes judicial notice that that marina has been constructed and is operational. On that basis, arguably, there is no major federal action remaining to occur so as to trigger a duty by Reclamation to supplement the 1984 EIS. See, e.g., SUWA, 542 U.S. at 73, 124 S.Ct. 2373 (citation and emphasis omitted) (“no ongoing ‘major Federal action’ . . . requir[ing] supplementation” where agency had already finally approved programmatic land use plan); Cold Mountain, 375 F.3d at 894 (holding, with no analysis, that given the Forest Service’s issuance and approval of a special use permit, there was “no ongoing ‘major Federal action’ requiring supplementation[,]” although the permit arguably required the Forest Service’s oversight); Envtl. Prot. Info. Ctr. v. U.S. Fish & Wildlife Serv., 2005 WL 3021939, at *6 (N.D.Cal. Nov. 10, 2005) (no “major federal action” implicating the duty to supplement an EIS where adoption of the Conservation Plan and issuance of the Take Permit were “all complete[,]” and all that remained was federal defendants’ “‘adaptive management’” thereunder); but see Sierra Club v. Bosworth, 465 F.Supp.2d 931, 939 (N.D.Cal. 2006) (“timber sales contract . . . approved by the Forest Service and awarded to a third party remain[ed] a ‘proposed action’ . . . requir[ing] supplementation [of EIS] if new significant information emerges[]” because contracts: (1) were “akin to the sitespecific dam construction at issue in Marsh[;]” (2) permitted unilateral - 44 - 1 the court will confine its analysis of the supplementation issue to 2 whether, as plaintiffs argue, Reclamation had a duty to supplement 3 in accordance with 40 C.F.R. § 1502.9(c)(1)(I) or (ii). 4 “Under NEPA, agencies must not only perform EISs prior to 5 taking federal action, but agencies must perform supplemental EISs 6 whenever 7 ‘(I) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or 8 (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.’ 9 10 11 Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549, 560 (9th 12 Cir. 2006) (quoting 40 C.F.R. § 1502.9(c)(1)) (bold emphasis 13 added). The Supreme Court, as earlier noted, has interpreted these 14 regulations to require preparation of a SEIS “if the new 15 information is sufficient to show that the remaining [major federal 16 action] will affec[t] the quality of the human environment in a 17 significant manner or to a significant extent not already 18 considered[]” by the federal agency. Marsh, 490 U.S. at 374, 109 19 S.Ct. 1851) (citation, footnote and internal quotation marks 20 omitted). 21 . . . 22 23 24 25 26 27 28 termination by Forest Service “if its original environmental analysis has been altered[;]” and (3) “required . . . Forest Service’s written approval of the operating plan prior to the commencement of logging[]”); ONRC, 445 F.Supp.2d at 1222 (major federal action remaining to occur where “agency’s original decision to award the [timber sale] contracts were set aside, and the logging of . . . timber sales [were] permanent[ly]” enjoined “until the Forest Service . . . ma[k]e[s] a fully-informed decision, in compliance with NEPA, that is should proceed with the logging[]”). Courts have taken a somewhat nuanced approach to the issue of whether a federal action remains to occur, as can be seen. Further, the resolution of that issue also is highly fact-intensive. Neither plaintiffs nor Reclamation engaged in that critical analysis. Thus, as indicated above, the court declines to speculate and instead assumes arguendo that a major federal action remains to occur here. - 45 - 1 b. 2 “Substantial Change” in Proposed Marina Plaintiffs advance a new theory of changed circumstances in 3 their reply.21 They assert that “[t]he 1984 EIS contemplated a 4 “‘relatively small (12-acre) marina[,]” but it was later 5 “substantially expanded.” Pls.’ Reply (Doc. 162) at 3:20-22 6 (citing PSOF (Doc. 151) at ¶ 64). Referring to paragraph 64 of 7 PSOF shows that plaintiffs believe that “the proposed marina will 8 encompass about 164 acres.” PSOF (Doc. 151) at 18:5-6, ¶ 64 9 (citation omitted) (emphasis added). 10 statement of the record. 11 for the “project[]” That is an inaccurate The 164 acres refers to the total acreage - not just for the marina. Admin. R., at 9. 12 Conveniently overlooking that discrepancy, plaintiffs argue that 13 the increase in marina size constitutes a “substantial change in 14 the proposed action after issuance of the 1984 EIS[,]” thus 15 warranting preparation of a SEIS. Pls.’ Reply (Doc. 162) at 22-24 16 (citing Cold Mountain, 375 F.3d at 892). 17 In response, Reclamation simply declares that because “[t]he 18 increase in size of the proposed marina was considered and 19 addressed[,]” it was not required to prepare a SEIS. 20 (Doc. 164) at 5:22. BOR’s Reply Reclamation further responds that that change 21 was “not of sufficient . . . character to require preparation of an 22 EIS.” 23 Id. at 5:23 (citation omitted). Both contentions are valid. It is readily apparent from the administrative record that 24 during the protracted environmental review process, from the 1984 25 EIS through the Final 2007 EA, the acreage for the proposed marina 26 27 28 21 Ordinarily the court would not consider a new argument made for the first time in a reply. However, where, as here, the opposing party, i.e. Reclamation, has had an opportunity to respond in its reply, there is no resultant prejudice. - 46 - 1 fluctuated. The 1984 EIS took into account that as a result of 2 increasing the height of the Waddell Dam, most of the recreational 3 facilities then-existing at Lake Pleasant would be submerged. 4 Admin. R., at 1-2. See That EIS therefore included a “conceptual 5 recreation plan for LPRP[.]” Id. at 3. That Plan mentioned a 6 “ranger station/marina complex . . . anticipated to be about 12 7 acres[,] . . . based upon estimated acreages identified for other 8 features[.]” 9 Id. (emphases added). At one point “[d]uring the [County’s] Master Recreation Plan 10 [“MRP”] planning process, a 200-acre marina was envisioned[.]” Id. 11 at 17. Based upon the 1984 EIS, however, the County’s 1995 MRP 12 “indicated[,]” that “there would be a 400-acre marina which 13 conceptually[]” would include a variety of amenities. 14 also id., Vol. 6 at 13. Id.; see Indeed, “[t]he 1997 EA recognized [that] 15 the MRP included greatly expanded marina facilities from what was 16 envisioned in the Plan 622 conceptual recreation plan[.]” Id., Vol. 17 3 at 3 (footnote added). Because of that, although Reclamation 18 “determined a [FONSI] was appropriate for approval of the MRP,” the 19 “1997 EA indicated that development of a marina would require 20 separate Reclamation review and approval” to ensure “site-specific 21 NEPA compliance . . . prior to Reclamation’s approval of the marina 22 plans.” Id. Ultimately, the Final EA reflected that the proposed 23 “project would encompass about 164 acres total[.]” Id. at 9. “Of 24 the 71 acres located above elevation 1702 feet, approximately 37 25 acres would be permanently affected by the construction of marina 26 facilities. The area within the [L]ake that would be taken up by 27 28 22 That Plan, in turn, was part of the 1984 EIS and is the “Agency Proposed Action” in the EIS. Admin. R., at 2. - 47 - 1 the marina facilities would be about 33 acres.” 2 Id. On this record, the court is not convinced that the difference 3 between the “anticipated” 12 acre marina and marina acreage just 4 described is “substantial” so as to require a SEIS pursuant to 40 5 C.F.R. § 1502.9(c)(1)(I). This is especially so given that the 6 1997 EA contemplated a vastly larger 400 acre marina. See Admin. 7 R., at H-98 (“The 1997 EA analyzed a 400-acre marina at the 8 Scorpion Bay site.”) Therefore, it can hardly be said that the 9 marina acreage in the Final EA was a “substantial change” 10 necessitating a SEIS. 11 Additionally, even if the court were to find that increased 12 marina size is tantamount to a “substantial change,” plaintiffs 13 have not shown that such a change would “significantly impact the 14 environment in a way not previously considered[.]” N. Idaho Cmty. 15 Action Network v. U.S. DOT, 545 F.3d 1147, 1158 (9th Cir. 2008) 16 (citing, inter alia, Marsh, 490 U.S. at 373-74, 109 S.Ct. 1851). 17 There is no requirement that an agency “start the environmental 18 assessment process anew with every change in a project.” 19 Road, 113 F.3d at 1509 (citation omitted). Price “[S]upplemental 20 documentation is only required when the environmental impacts reach 21 a certain threshold - i.e. significant (defined at 40 C.F.R. 22 § 1508.27) or uncertain.” 23 such showing here. Id. at 1509. Plaintiffs have made no For these reasons, the court finds that 24 Reclamation did not have an obligation to issue a SEIS based upon 25 40 C.F.R. § 1502.9(c)(1)(I). 26 27 c. “Significant New Information or Circumstances” Plaintiffs’ reliance upon the second prong of section 28 1502.9(c)(1) is similarly unavailing. - 48 - Plaintiffs declare that 1 since preparation of the 1984 EIS, “the Lake has dramatically 2 increased in size and volume.” Pls.’ Mot. (Doc. 150) at 10:16-17 3 (citing PSOF (Doc. 151) at ¶ 14). Plaintiffs add, “[t]he maximum 4 volume has more than quadrupled, while the surface area has almost 5 tripled[,]” id. at 10:17-18 (citation omitted), which Reclamation 6 does not dispute. BOR’s Resp. PSOF (Doc. 156) at 4-5, ¶ 14. 7 Plaintiffs believe that that increase in size and volume 8 constitutes a “significant new circumstance[] or information” 9 within the meaning of section 1502.9(c)(1)(ii), in turn, compelling 10 the issuance of a SEIS. 11 Reclamation agrees that the Lake’s size has increased, but it 12 disagrees that that information is “new.” 13 is well-taken. See id. This position That increase in the Lake’s size is hardly a 14 “significant new circumstance[] or information” given that at least 15 since the 1984 EIS it was known that the Lake would become larger 16 due to the construction of the New Waddell dam. As this court 17 previously explained: 18 19 20 Because water levels were to increase significantly with the construction of the New Waddell Dam, submerging the then existing public marina, the 1984 EIS included a recreational development plan for the enlarged lake resulting from the new dam. 21 Lake Pleasant I, 2007 WL 1486869, at *1 (emphasis added); see also 22 Admin. R., at 1-2. Moreover, even if plaintiffs had shown that an 23 increase in the size of the Lake was a “significant new 24 circumstance [or] information,” again, they have not shown that 25 that increase “will affec[t] the quality of the human environment 26 in a significant manner or to a significant extent not already 27 considered[.]” See Marsh, 490 U.S. at 347, 109 S.Ct. 1851 28 (citations, footnote and internal quotation marks omitted) - 49 - 1 (emphasis added). Plaintiffs therefore cannot prevail on their 2 claim that Reclamation violated NEPA by not issuing a SEIS pursuant 3 to 40 C.F.R. § 1502.9(c)(1)(ii). 4 Lastly, the court notes that plaintiffs’ reliance upon Cold 5 Mountain, as a basis for requiring a SEIS here, is misplaced. 6 Hence, Cold Mountain does not alter this court’s analysis of the 7 duty to supplement. There, the Ninth Circuit held that the Forest 8 Service did not have an obligation to supplement its NEPA analysis 9 under 40 C.F.R. § 1502.9(c)(1)(I) and (ii), due to the lack of an 10 “ongoing major Federal action requiring supplementation.” Cold 11 Mountain, 375 F.3d at 894 (citation and internal quotation marks 12 omitted). Thus, the Court had no reason to and, indeed, did not 13 consider what constitutes “substantial changes” or “significant new 14 . . . information” as those phrases are used in section 15 1502.9(c)(1). 16 “Particularly considering its limited role in determining 17 whether [Reclamation] acted arbitrarily or capriciously” by not 18 “prepar[ing] a[] SEIS,” the court is satisfied that Reclamation did 19 not have an obligation to prepare a SEIS pursuant to 40 C.F.R. 20 § 1502.9(c)(1)(I) or (ii). See Friends of Canyon Lake v. Brownlee, 21 2004 WL 2239243, at *14 (W.D.Tex. Sept. 30, 2004). The change in 22 Lake Pleasant’s size and volume and the expansion of the marina are 23 not “substantial changes” or “significant new circumstances or 24 information” that have not already been considered “sufficient to 25 trigger the need for [Reclamation] to take another ‘hard look’ at 26 the [marina project].” See id. Based upon plaintiffs’ arguments, 27 the court cannot find that they have “present[ed] a seriously 28 different picture of the environmental landscape of [Lake - 50 - 1 Pleasant], requiring a[] SEIS.” See id. (footnote omitted). In 2 sum, Reclamation is not in derogation of its NEPA duties for not 3 preparing a SEIS because plaintiffs have not shown that either the 4 increase in the Lake’s size or the expansion of the marina 5 “result[ed] in significant environmental impacts in a manner not 6 previously evaluated and considered.” See N. Idaho Cmty. Action 7 Network, 545 F.3d at 1157 (citation and internal quotation marks 8 omitted). 9 10 B. “Deficiencies” in Final EA Plaintiffs’ next NEPA claim pertains to alleged deficiencies 11 in the Final EA. Plaintiffs argue that that EA “is deficient 12 because it overlooked a number of potential environmental impacts 13 and other considerations which, at a minimum, could have influenced 14 BOR’s decision whether to issue a FONSI.” 15 11:17-19. Pls.’ Mot. (Doc. 150) at Given the law of the case rulings herein, plaintiffs’ 16 remaining challenges to the Final EA pertain to: (1) the watercraft 17 usage rate calculation; (2) the pump-out system response; 18 (3) elimination of the No Action Alternative; and (4) whether 19 Alternative A is a meaningful alternative. 20 Addressing each challenge in turn, the court is mindful of its 21 modest task and the limited scope of its review. In accordance 22 with the APA, the court will engage in a “‘searching and careful’” 23 review of the Final EA[.]” Ctr. for Biological Diversity v. 24 Kempthorne, 588 F.3d 701, 707 (9th Cir. 2010) (quoting Marsh, 490 25 U.S. at 378, 109 S.Ct. 1851). At the same time, this review must 26 be “‘narrow’” given that the court cannot “substitute [its] 27 judgment for that of the agency.” Id. (quoting Marsh, 490 U.S. at 28 378, 109 S.Ct. 1851). - 51 - 1 2 1. Standards of Review “NEPA exists to ensure a process, not to mandate particular 3 results.” Native Ecosystems Council v. Tidwell, 599 F.3d 926, 936 4 (9th Cir. 2010) (citation and internal quotation marks omitted). 5 “NEPA requires a federal agency to the fullest extent possible, to 6 prepare a detailed statement on the environmental impact of major 7 Federal actions significantly affecting the quality of the human 8 environment.” Id. (citation and internal quotation marks omitted). 9 In the NEPA process, preliminary to an agency’s preparation of an 10 EIS it may prepare an EA “to determine whether a proposed action 11 may significantly affect the environment.” Id. at 936-37 12 (citations and internal quotation marks omitted). “If the agency 13 concludes in the [EA] that there is no significant effect from the 14 proposed project, the federal agency may,” as Reclamation did here, 15 “issue a [FONSI] in lieu of preparing an EIS.” 16 internal quotation marks omitted). Id. (citation and However, “[i]f an agency 17 decides not to prepare an EIS,” which also occurred here, “it must 18 supply a convincing statement of reasons to explain why a project's 19 impacts are insignificant.” 20 quotation marks omitted). Id. at 937 (citation and internal “Th[at] statement . . . is crucial to 21 determining whether the agency took a hard look at the potential 22 environmental impact of a project.” Id. (citations and internal 23 quotation marks omitted). 24 NEPA does not include standards for judicial review. 25 Therefore, plaintiffs’ NEPA challenges to the Final EA are subject 26 to review under the APA. See Tidwell, 599 F.3d at 932 (citation 27 omitted) (“review[ing] agency decisions for compliance with . . . 28 NEPA under the . . . APA[]”). The APA directs reviewing courts to - 52 - 1 “hold unlawful and set aside agency action, findings, and 2 conclusions” only if they are “found to be . . . arbitrary, 3 capricious, an abuse of discretion, or otherwise not in accordance 4 with law.” 5 5 U.S.C. § 706(2)(A). “The court may not substitute its judgment for that of the 6 agency concerning the wisdom or prudence of [the agency’s] action.” 7 River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th 8 Cir. 2010) (citation and internal quotation marks omitted). Courts 9 accord deference to “agency environmental determinations not 10 because the agency possesses substantive expertise, but because the 11 agency’s decisionmaking process is accorded a ‘presumption of 12 regularity.’” Akiak Native Comty. v. U.S. Postal Serv., 213 F.3d 13 1140, 1146 (9th Cir. 2000) (quoting Citizens to Preserve Overton 14 Park, Inc. v. Volpe, 401 U.S. 401, 415, 91 S.Ct. 814, 28 L.Ed.2d 15 136 (1971)); see also Ctr. for Biological Diversity, 588 F.3d at 16 707 (citation and internal quotation marks omitted) (Courts “are 17 highly deferential [to the agency and] presume[] the agency action 18 to be valid.”) 19 This court cannot emphasize enough the deferential nature of 20 this APA standard of review. “The APA does not allow the court to 21 overturn an agency decision because it disagrees with the decision 22 or with the agency’s conclusions about the environmental impact.” 23 River Runners, 593 F.3d at 1070 (citing, inter alia, Vt. Yankee 24 Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 555, 25 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). As the Ninth Circuit 26 recently reiterated: 27 28 In conducting an APA review, the court must determine whether the agency’s decision is founded on a rational connection between the facts found and the choices made and whether - 53 - 1 [the agency] has committed a clear error of judgment. 2 3 Id. (citation and internal quotation marks omitted). Simply put, 4 “[t]he [agency’s] action . . . need only be a reasonable, not the 5 best or most reasonable decision.” Id. (citation and internal 6 quotation marks omitted) (emphasis added). 7 Finally, before discussing the merits, the court notes that 8 because these NEPA claims involve review of an agency decision 9 under the APA, summary judgment is “an appropriate mechanism for 10 deciding the legal question of whether the agency could reasonably 11 have found the facts as it did.” City & County of San Francisco v. 12 U.S., 130 F.3d 873, 877 (9th Cir. 1997) (internal quotation marks 13 and citation omitted); see also Border Power Plant v. Dep’t of 14 Energy, 467 F.Supp.2d 1040, 1054 (S.D.Cal. 2006) (citation and 15 internal quotation marks omitted) (“In the absence of fact finding, 16 summary judgment is an appropriate vehicle for disposing of the 17 legal issues [under NEPA and the CAA].”) “The court’s role in such 18 cases is not to resolve contested fact questions which may exist in 19 the underlying administrative record, but rather the court must 20 determine the legal question of whether the agency’s action was 21 arbitrary and capricious.” Natural Resources Defense Council, Inc. 22 v. U.S. Forest Serv., 634 F.Supp.2d 1045, 1054 (E.D.Cal. 2007) 23 (citation and internal quotation marks omitted). 24 25 2. Watercraft Usage Rate Calculation Plaintiffs argue that because the Final EA “acknowledges 26 uncertainty as to current, actual Lake usage figures[,] . . . 27 preparation of an EIS [is] warrant[ed][.]” See Pls.’ Reply (Doc. 28 162) at 15:23 - 16:1 (emphasis added) (citation omitted). - 54 - This 1 claimed uncertainty is based upon three discrete factual 2 underpinnings. First, plaintiffs perceive an inconsistency because 3 the Final EA states that the watercraft calculation was “‘based 4 upon the entry fees collected at the Park entry stations[,]’” while 5 at the same time “admit[ting] that the actual number of watercraft 6 may be higher23 ‘due to noncompliance at self-pay stations and 7 alternative access points.’” Pls.’ Mot. (Doc. 150) at 14:25-57 8 (quoting PSOF (Doc. 151) at ¶ 69 (quoting in turn Admin. R., at H9 10 11 12 13 14 15 16 23 In reality, the Final EA states that “the actual number of watercraft entering from LPRP may be slightly higher.” Admin. R. at H-31 (emphasis added). Perhaps plaintiffs’ omission of the word “slightly” was an oversight. All of the parties at times seem to have mischaracterized the evidence – either by selectively quoting from the record or by citing to a part of the record which did not support their contention. The parties’ submissions are replete with such instances too numerous to count. To illustrate, in discussing CO emissions, LPMP argued that Reclamation “has no authority to address the increasing amount of traffic and visitors to the Maricopa County Park – it cannot control where they come from, what they drive or emit, or whether they travel through a non-attainment or maintenance area.” LPMP’s Reply (Doc. 166) at 18:14-17 (citing ACSOF ¶ 4)). The cited paragraph reads as follows: The Final EA states, 17 18 19 20 21 22 23 24 25 26 27 Under the No Action alternative, it is expected that visitation to LPRP and use of Lake Pleasant would continue to increase. As the northern portion of Maricopa County continues to become urbanized the rural nature of the LPRP experience will become more like that of a suburban park. ACSOF (Doc. 167) at 6, ¶ 4:24-28 (citation omitted). It is readily apparent that the just quoted statement is not germane to the issue of Reclamation’s authority, or lack thereof, to control increasing traffic and visitors to LPRP. In its Response to PSOF, Reclamation similarly misstates the record. Reclamation “assert[s] that the [MCAQ] reviewed the air quality sections of the Draft [EA] and noted that an analysis of CO emissions from watercraft and vehicles should be estimated in the [EA].” BOR’s Resp. PSOF (Doc. 156) at 8, ¶ 34:6-10 (citing at pp. D-9 - D-10.) (emphasis added). Conspicuously absent from the cited pages is any mention of vehicles. The subject line of that letter is “Nonroad engines emission estimates for proposed Scorpion Bay Marina[.]” Admin. R., at D-9 (emphasis added). Given that subject line, it is not surprising that vehicles are not discussed therein. Whether such statements of all the parties are due to oversight or adversarial overzealousness, they are not helpful in resolving the complex issues raised in these motions. 28 - 55 - 1 31) (footnote omitted). The court observes that to the extent 2 plaintiffs are suggesting that collection of entry fees was the 3 sole basis for Reclamation’s calculation of watercraft usage, they 4 are wrong. The Final EA, and particularly the appendix entitled 5 “Methodology for Estimating Current and Anticipated Future 6 Watercraft Use at Lake Pleasant,” thoroughly explains the manner in 7 which watercraft usage was calculated. 8 just one part of the calculation. Entry fee collection was When read as a whole, there is 9 nothing arbitrary and capricious about the Final EA’s candid 10 recognition that “the actual number of watercraft entering from 11 LPRP may be slightly higher[,]” taking into account “non-compliance 12 at self-pay stations and alternative access points.” 13 Second, plaintiffs strenuously disagree with the Final EA’s 14 assumption of a 20% daily watercraft usage rate. Plaintiffs 15 denounce that percentage as “nothing more than an arbitrary figure 16 plucked out of thin air.” Id. at 15:10. Third, in plaintiffs’ 17 view, the alleged uncertainty as to watercraft usage rates arises 18 from the Final EA’s “fail[ure] to give any consideration to the 19 increased Lake usage that will result from watercraft that are 20 stored at the proposed marina’s 5-acre storage yard[.]” Id. at 21 15:13-14. 22 Plaintiffs, with no analysis, cite only to Nat’l Parks & 23 Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001), as the 24 basis for their assertion that due to the “uncertainty” as to the 25 factors listed above, Reclamation violated NEPA by not preparing a 26 SEIS. Plaintiffs’ reliance upon National Parks demonstrates a 27 fundamental misunderstanding of that decision, however. 28 Court did not address uncertainty in EAs generally. - 56 - There, the Nor did it 1 address uncertainty as to the factual basis for a given conclusion. 2 Rather the focus of the Court’s uncertainty analysis in Nat’l Parks 3 was more narrow – “the environmental effects of a proposed agency 4 action[.]” 5 Id. at 731 (citation omitted). In National Parks, the EA upon which the FONSI was based 6 catalogued a number of “special effects” that an increase in cruise 7 ship traffic entering Glacier Bay National Park would have on the 8 environment. Id. at 732. Significantly, however, the EA 9 “describe[d] the intensity or practical consequences of these 10 effects, individually and collectively, as unknown.” 11 (citation and internal quotation marks omitted). Id. at 732 The EA repeatedly 12 stated “unknown” as to variety of environmental impacts, such as 13 the effects of cruise ship disturbance upon wildlife; “the 14 effect[s] of noise and air pollution” upon wildlife; and “the 15 degree of increase [in oil spills as a result of increased 16 traffic][.]” Id. (internal quotation marks omitted). The Ninth 17 Circuit thus held that National Park Service “made a clear error of 18 judgment” by, inter alia, not preparing an EIS before allowing an 19 increase in the number of cruise ship entries into Glacier Bay. 20 Id. at 739 (citation and internal quotation marks omitted). 21 In so holding, the Ninth Circuit reiterated that “[a]n agency 22 must generally prepare an EIS if the environmental effects of a 23 proposed agency action are highly uncertain.” 24 added) (citation omitted). Id. at 731 (emphasis “Preparation of an EIS is mandated 25 where uncertainty may be resolved by further collection of data, 26 . . . , or where the collection of such data may prevent 27 speculation on potential [environmental] effects.” Id. at 732 28 (emphasis added) (internal citation and quotation marks omitted). - 57 - 1 The EA at issue in National Parks established both criteria. 2 at 733. Id. As the foregoing amply demonstrates, it is not the mere 3 existence of some uncertainty which implicates a duty to prepare a 4 SEIS. Rather, that uncertainty must pertain to environmental 5 impacts and be “highly uncertain.” See Envtl. Prot. Info. Ctr. v. 6 U.S. Forest Serv., 451 F.3d 1005, 1011 (9th Cir. 2006) (citations 7 and internal quotation marks omitted) (“[T]he regulations do not 8 anticipate the need for an EIS anytime there is some uncertainty, 9 but only if the effects of the project are highly uncertain.”) 10 Here, as outlined above, plaintiffs stress the purported 11 uncertainty of some of the data used in calculating the watercraft 12 usage rate. They do not argue, nor have they shown, that the 13 environmental impacts of the proposed marina are highly uncertain 14 as National Park requires. That omission is fatal to plaintiffs’ 15 assertion that due to uncertainty in the EA, Reclamation violated 16 NEPA by not preparing a SEIS. Consequently, the court finds that 17 plaintiffs have not met their burden of showing that the 18 environmental impacts of the proposed marina are highly uncertain 19 so as to warrant preparation of a SEIS. 20 21 3. “Pump-out System” After issuance of the Draft EA, there was public comment that 22 Reclamation had “overlooked” certain “water quality issues on the 23 Lake[,]” such as “human fecal waste[.]” 24 ¶ XIV(A). Admin. R. at H-87, at As part of its broader argument that “[t]he Final EA is 25 based on inaccurate and incomplete data[,]” plaintiffs take issue 26 with Reclamation’s response to that particular water quality issue. 27 Plaintiffs underscore that the “Final EA . . . acknowledges, 28 ‘[t]he concessionaire would have no control over what boaters do - 58 - 1 out in the [L]ake.’” Pls’. Mot. Summ. J. (Doc. 150) at 15:25 - 16:1 2 (quoting Admin R., at H-104). That is true, but plaintiffs are 3 ignoring the broader context of that quote. Following that candid 4 admission, the EA adds that “[a]ll concession-run activities such 5 as maintenance and repair activities, operation of boat pump-out 6 stations, fueling operations, etc., would comply with all 7 applicable regulations and follow generally accepted best 8 management practices to avoid runoff into the lake.” 9 H-104 (emphasis added). Admin. R., at The court fails to see how Reclamation’s 10 candid nod to reality equates to arbitrary or capricious conduct. 11 This is especially so given the Final EA’s recognition that the 12 concessionaire must operate its boat pump-out stations in 13 conformity with applicable regulations and accepted best practices. 14 Notably, the Final EA also explains that the “boat pump-out system 15 would be constructed in cooperation with the Arizona Game & Fish 16 Department . . . in response to the Clean Vessel Act of 1992[]” - 17 an Act “passed to help reduce pollution from vessel sewage 18 discharges.” 19 Id. at 14. Further, the FONSI states that “[t]he [p]roposed Marina would 20 be equipped with a ‘state-of-the-art’ boat pump-out system to 21 remove and transport waste from boats to the marina’s lift 22 station.” Id., Vol. 3 (FONSI) at 5. From plaintiffs’ perspective, 23 this too was an inadequate response to the human waste issue, 24 because the Use Management Agreement (“UMA”) between the County and 25 LPMP does not require LPMP do provide such a system. 26 Vol. 1 (UMA) at 000171-000172. See Admin R., To comport with NEPA, the source of 27 LPMP’s obligation to provide a pump-out system does not necessarily 28 have to be contractual, however. - 59 - 1 Moreover, in responding to concerns about water quality due to 2 human waste, the FONSI explains: 3 4 5 The existing marina has been in operation for ten years. As indicated in the EA, there has been no detection of human or animal fecal waste in Lake Pleasant water in the 3 years that CAWCD [Central Arizona Water Conservation District] has been testing for cryptosporidium and giardia. 6 7 Id., Vol. 3 (FONSI) at 5; see also id., (Final EA) at 23. In light 8 of the foregoing, combined with Reclamation’s discussion and 9 analyses of water quality standards and the proposed marina’s 10 wastewater system, see, e.g., Admin. R. at 23; and at H-109, 11 Reclamation’s response to public comment as to water quality was 12 not “arbitrary, capricious, an abuse of discretion” or “otherwise 13 not in accordance with the law.” 14 15 See 5 U.S.C. § 760(2)(A). 4. Alternatives “NEPA requires [an] agenc[y] to ‘study, develop, and describe 16 appropriate alternatives to recommended courses of action in any 17 proposal which involves unresolved conflicts concerning alternative 18 uses of available resources.’” N. Idaho Cmty. Action Network, 545 19 F.3d at 1153 (quoting 42 U.S.C. § 4332(2)(E)). “This ‘alternatives 20 provision’ applies whether an agency is preparing an . . . EIS” 21 or[,]” as here, “an . . . EA, and requires the agency to give full 22 and meaningful consideration to all reasonable alternatives.” Id. 23 (citation omitted); see also Te-Moak Tribe v. U.S. Dept. of the 24 Interior, 2010 WL 2431001, at *6 (9th Cir. June 18, 2010) (citations 25 omitted) (“Agencies are required to consider alternatives in both 26 EISs and Eas and must give full and meaningful consideration to all 27 reasonable alternatives.”) Significantly though, “an agency's 28 obligation to consider alternatives under an EA is a lesser one - 60 - 1 than under an EIS.” N. Idaho Cmty. Action Network, 545 F.3d at 2 1153 (citation and internal quotation marks omitted). “[W]ith an 3 EIS, an agency is required to ‘[r]igorously explore and objectively 4 evaluate all reasonable alternatives[.]’” Id. (citing 40 C.F.R. § 5 1502.14(a)). Conversely, “with an EA, an agency only is required 6 to include a brief discussion of reasonable alternatives.” 7 (citing 40 C.F.R. § 1508.9(b)) (emphasis added).24 Id. As will soon 8 become evident, plaintiffs are conveniently overlooking this 9 distinction. They are attempting to hold Reclamation to the more 10 stringent standard which applies when discussing alternatives in an 11 EIS, as opposed to in an EA. 12 13 a. “No Action Alternative” Plaintiffs fault Reclamation’s elimination of the No Action 14 Alternative on three separate grounds, which the court will discuss 15 in turn. 16 17 I. Need Determination Again selectively quoting from the Final EA, plaintiffs 18 contend that Reclamation improperly “dismissed the ‘No Action’ 19 alternative by asserting that the County ‘has determined there is a 20 21 22 23 24 25 26 27 28 24 Plaintiffs insinuate that because the Final EA contains only two alternatives - “No Action” and “Action Alternative A,” it does not comply with NEPA. See Pls.’ Mot. (Doc. 150) at 16:18-19. This Circuit has recognized, however, that NEPA regulations “do[] not impose a numerical floor on alternatives to be considered.” Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005) (footnote omitted). Nor does this Circuit “require an agency to discuss a minimum number of alternatives[]” under NEPA. Natural Resources Defense Council, 634 F.Supp.2d at 1059 (citing, inter alia, Native Ecosystems, 428 F.3d at 1246). Moreover, because agencies have a lesser obligation to consider alternatives in an EA, “consideration of only two . . . (a no action and a preferred alternative) may suffice.” Hamilton v. U.S. Dep’t of Transp., 2010 WL 889964, at *6 (E.D.Wash. March 8, 2010) (citing N. Idaho Cmty. Action Network, 545 F.3d at 1153). Thus, to the extent plaintiffs are arguing that Reclamation did not comply with NEPA’s alternatives provision because it considered only two alternatives, that argument is without merit. See Te-Moak Tribe, 2010 WL 2431001, at *7 n. 11 (no merit to plaintiffs’ suggestion that the agency violated NEPA “by considering only two actions-the proposed plan and the No Action Alternative[]”). - 61 - 1 need for a [new] marina and its associated amenities as part of’ 2 the Park.” Pls.’ Mot. (Doc. 150) at 16:21-23 (quoting [P]SOF [Doc. 3 151] at ¶ 86). Based upon that snippet, plaintiffs assert that the 4 County’s need determination amounts to an impermissible 5 “abdicat[tion]” of Reclamation’s “NEPA-imposed obligation to 6 consider and evaluate alternatives to a proposed action.” Id. at 7 16:23-24 (citations omitted). 8 There are legal and factual flaws with plaintiffs’ argument. 9 Factually, despite what plaintiffs imply, the County did not act 10 alone in making the need determination. As Reclamation counters, 11 and the EA states, “[r]ecreational planning associated with the New 12 Waddell Dam feature of the Regulatory Storage Division of CAP has 13 consistently envisioned a marina as one of the developments to be 14 included in the park to be operated and maintained by the local 15 sponsor; this was even before the County became the local operating 16 entity of the park.” Admin. R. at 17 (emphasis added). Further, 17 as detailed in the “background” section of the Final EA, 18 Reclamation had a long history of involvement with the recreational 19 development at Lake Pleasant. 20 See id. at 1-3. Not only that, Reclamation was the “lead agency responsible 21 for prepar[ing]” the EA, and the County was “the cooperating agency 22 due to its expertise in and responsibility for managing LPRP for 23 recreation.” Id. at 1. Consistent with the foregoing, “[a]s the 24 responsible recreation land management agency for LPRP, [the 25 County] reconfirmed there is a need for a marina and its associated 26 amenities on the western shore of Lake Pleasant[.]” Id. at 17, 27 § 2.4 (emphasis added). Viewing the administrative record as a 28 whole, it is readily apparent that the County did not act alone in - 62 - 1 assessing the need for a marina at LPRP. Indeed, the record shows 2 just the opposite: Reclamation and the County were jointly involved 3 in the NEPA process at nearly every step of the way. 4 To support its “abdication” argument, plaintiffs rely upon 40 5 C.F.R. § 1506.5(b), stating in relevant part that “[if] an agency 6 permits an applicant to prepare an [EA], the agency, . . . , shall 7 make its own evaluation of the environmental issues and take 8 responsibility for the scope and content of the environmental 9 assessment.” 40 C.F.R. § 1506.5(b) (emphasis added). 10 reliance upon that regulation is misplaced. Plaintiffs’ First, the EA was 11 “prepared by” Reclamation as “Lead Agency” and the County as 12 “Cooperating Agency[.]” Admin. R. at Title Page) (emphasis 13 omitted). Therefore, on its face, it is questionable whether that 14 regulation applies. Assuming arguendo that the County is the 15 “applicant” for purposes of section 1056.5(b), it did not prepare 16 the EA alone as that regulation presupposes. Second, nothing on 17 the face of that regulation mandates that an agency must make a 18 needs determination alone. In short, the court does not find 19 persuasive plaintiffs’ argument that Reclamation improperly 20 delegated to the County the decision as to the need for a new 21 marina. 22 ii. Availability of Water Recreational Opportunities 23 24 Plaintiffs’ next argument is similarly unavailing. They 25 contend that the “EA’s assessment of the No Action Alternative is 26 based on [the] incorrect premise[,]” that “‘water-based 27 recreational opportunities appear to be limited to those that 28 presently exist.’” Pls.’ Mot. (Doc. 150) at 17:1-2 (quoting [P]SOF - 63 - 1 ¶ 87) (emphasis added). Despite the equivocal nature of that 2 statement, plaintiffs assert that it is “false[]” because their 3 “existing Pleasant Harbor Marina is not yet fully built out, and is 4 planning an expansion that would add ‘another 160 wet slips and 400 5 dry stack storage spaces’ for watercraft.” Id. at 17:3-5 (quoting 6 [P]SOF ¶ 89, quoting in turn Admin. R. at 8, § 2.1). Plaintiffs 7 thus reason that “[c]ontrary to the . . . EA’s premise, 8 recreational opportunities at the Lake will continue to increase 9 even if no action were taken[.]” 10 Id. at 17:6-7. At the risk of repetition, again, plaintiffs are selectively 11 quoting from the EA to create one impression. Read in context and 12 in accordance with the record as a whole, however, that quote 13 creates a different and more accurate impression of the Final EA’s 14 evaluation of “water-based recreational opportunities.” Plaintiffs 15 ignore that in discussing the No Action Alternative, the Final EA 16 factors that expansion into its analysis by explicitly “assum[ing] 17 . . . complet[ion] [of that] expansion[.]” Admin. R. at 8, § 2.1; 18 see also id. (FONSI) at 3 (emphasis added) (“Given the recent and 19 ongoing rapid development in this portion of Maricopa County, and 20 Lake Pleasant being the only large water body serving this growing 21 population, at some point demand for marina slips could exceed 22 available supply, with or without Pleasant Harbor Marina’s planned 23 expansion[.]”) Thus, in considering future water-based recreational 24 opportunities, Reclamation did not take the overly restrictive 25 position which plaintiffs attribute to it. Instead, Reclamation 26 assumed expansion of Pleasant Harbor Marina but, nonetheless, 27 eliminated the No Action Alternative because it “would not satisfy 28 the purpose and need for the project.” - 64 - Id. (FONSI) at 4, ¶ 2. 1 2 iii. “Quality of Recreation Experience” Third, plaintiffs claim that in eliminating the No Action 3 Alternative the Final “EA speculated that taking no action will 4 leave demand for water recreation at the Lake unmet because, 5 allegedly, the existing Pleasant Harbor Marina will not maintain 6 the quality of its facilities.” 7 17:8-10 (emphasis added). Pls.’ Mot. Summ. J. (Doc. 150) at Plaintiffs actually misread the Final EA 8 which states: 9 10 11 As visitation increases for all recreation activities, and existing facilities reach their capacity limits, available recreation sites and facilities would likely deteriorate over time from overuse and the quality of the recreation experience for most users would decline. 12 13 Admin. R. at 34, § 3.4.2.1 (emphasis added). That statement does 14 not correlate an unmet demand for water recreation with 15 deterioration of existing facilities. That statement focuses on 16 the overall “quality of the recreation experience[,]” as opposed to 17 the availability of that experience in the first place. Further, 18 that statement was made in discussing the “[e]nvironmental 19 [c]onsequences” of the No Action Alternative. See id. The Final 20 EA does not suggest elimination of the No Action Alternative due to 21 deterioration of existing facilities from overuse. It is self- 22 evident that the primary basis for eliminating the No Action 23 Alternative is because it did not satisfy the project’s stated 24 purpose and need - development of marina facilities on the western 25 shore of Lake Pleasant. As is readily apparent from the foregoing 26 discussion, plaintiffs fail in their attempt to show that the Final 27 EA’s elimination of the No Action Alternative violated NEPA. 28 did not. - 65 - It 1 2 b. “Action Alternative A” Given the law of the case, as to Alternative A, plaintiffs are 3 left with their argument that that Alternative is “not sufficiently 4 different from the proposed marina to constitute a meaningful 5 alternative[.]” Pls.’ Mot. Summ. J. (Doc. 150) at 17:16-17 6 (emphasis omitted). Alternative A is not a meaningful alternative, 7 plaintiffs contend, because there are “few differences” between it 8 and the project as proposed. Id. at 17:24. Alternative A “would 9 consist of three of the four phases of the proposed marina,” 10 resulting in spaces for roughly 200 watercraft less than the 11 proposed marina. Id. at 17:24-26. Additionally, plaintiffs point 12 out that the Final EA “repeatedly notes” that the potential 13 environmental impacts of Alternative A “will be essentially the 14 same as, if not identical to, those of the proposed marina.” 15 at 17:27-18:1 (citation omitted). Id. Hence, plaintiffs assert that 16 Reclamation violated NEPA’s alternatives provision, 42 U.S.C. 17 § 4332(2)(E), because Alternative A and the proposed action are 18 substantially similar. 19 Reclamation did not respond to this narrow argument. 20 Reclamation instead stresses the purpose and need for the proposed 21 action. Concisely put, it is Reclamation’s position that it 22 “reasonably defined the purpose and need of the project to include 23 some funding for the County’s management of the Lake[;]” and that 24 “[o]nly projects associated with the county would do so.” 25 Cross-mot. (Doc. 154) at 20:8-9. BOR’s Reclamation thus argues that it 26 “rightly rejected any alternative [including Alternative A] that 27 did not further the purpose and need for the project[.]” BOR’s 28 Cross-mot. (Doc. 154) at 21:4. - 66 - 1 “In judging whether [Reclamation] considered appropriate and 2 reasonable alternatives, [the court’s] focus [is] first on the 3 stated purpose for the . . . Project.” 4 F.3d at 1246 (citation omitted). See Native Ecosystems, 428 Here, the “Purpose and Need” 5 section of the Final EA states in relevant part: 6 7 8 9 The purpose of the project is to provide expanded boating access, additional boat storage capacity, and associated recreational facilities in a manner that will address the increasing demand for these services, provide financial resources for the maintenance of LPRP, and maintain consistency with the MPR. 10 Admin. R. at 4 (emphasis added). The FONSI explained that “[t]he 11 proposed marina would operate with oversight by MCPRD [Maricopa 12 County Parks and Recreation Department], a public entity, and would 13 offer the public a choice in the type of setting and conditions 14 under which to store or rent their watercraft.” Id. (FONSI) at 4. 15 Moreover, as proposed, the new marina would result in MCPRD 16 “receiv[ing] additional resources for managing LPRP overall[]” in 17 the form of “a percentage of the annual revenue generated by the 18 [marina] concession.” Id. at 8. Alternative A would not advance 19 the purpose and need of this project as it is not associated with 20 the County. See id. (Final EA) at 17. Thus, arguably Alternative 21 A was not a reasonable and appropriate alternative which 22 Reclamation had to consider in the first place. 23 In any event, Muckleshoot Indian Tribe v. U.S. Forest Serv., 24 177 F.3d 800 (9th Cir. 1999), is plaintiffs’ only legal support for 25 their argument that Alternative A is not a “meaningful” alternative 26 because purportedly it is too similar to the project as proposed. 27 As plaintiffs read Muckleshoot, “[t]he Ninth Circuit . . . held 28 that an agency cannot satisfy NEPA’s mandate to consider - 67 - 1 alternatives by considering ‘only a no action alternative along 2 with two virtually identical alternatives.’” Pls.’ Mot. (Doc. 150) 3 at 18:2-4 (quoting Muckleshoot, 177 F.3d at 813) (emphasis added). 4 A close reading of Muckleshoot shows that it does not stand for 5 that broad proposition. Moreover, Reclamation’s consideration of 6 alternatives herein is readily distinguishable from that of the 7 Forest Service’s in Muckleshoot. So, at the end of the day, 8 Muckleshoot does nothing to advance plaintiffs’ argument that 9 Reclamation violated NEPA because Alternative A is not a 10 “meaningful alternative.” 11 The first and perhaps the most critical distinction between 12 Muckleshoot and the present case is that the Court there was 13 reviewing the adequacy of the range of alternatives in an EIS, 14 whereas here the court is reviewing an EA. That is a critical 15 distinction because, as mentioned earlier, “an agency's obligation 16 to consider alternatives under an EA is a lesser one than under an 17 EIS.” N. Idaho Cmty. Action Network, 545 F.3d at 1153 (citation 18 and internal quotation marks omitted). An EA need only “include a 19 brief discussion of reasonable alternatives.” 20 C.F.R. § 1508.9(b)). Id. (citing 40 On the other hand, the preparation of an EIS 21 obligates an agency to “[r]igorously explore and objectively 22 evaluate all reasonable alternatives[.]” Id. (quoting 40 C.F.R. 23 § 1502.14(a)). Muckleshoot, therefore, “provides little support 24 for requiring similar rigor” when, as here, the court is reviewing 25 an EA. See Shasta Resources Council v. U.S. Dep’t of the Interior, 26 629 F.Supp.2d 1045, 1055 (E.D.Cal. 2009)(footnote omitted). 27 Second, despite plaintiffs’ characterization of Muckleshoot, 28 that Court did not hold that the Forest Service failed to consider - 68 - 1 an adequate range of alternatives because “[t]he EIS considered 2 only a no action alternative along with two virtually identical 3 alternatives.” Muckleshoot, 177 F.3d at 813. What occurred in 4 Muckleshoot is that “initially” the Forest Service “considered five 5 action alternatives and a no action alternative for the project.” 6 Id. After eliminating three alternatives from “detailed study[,]” 7 the Forest Service performed analyses on the remaining two 8 alternatives and the No Action Alternative. Id. The Ninth 9 Circuit found “troubling” the Forest Service’s failure to consider 10 one of those “preliminarily eliminated” alternatives “that was more 11 consistent with [the agency’s] basic policy objectives than the 12 alternatives that were the subject of final consideration.” 13 (emphasis added). Id. The Ninth Circuit’s holding was not based upon 14 the scant number of alternatives or the similarities between two of 15 them. 16 Moreover, to reach that conclusion, the Muckleshoot Court 17 “deviated” from the “deferential approach” typically afforded to an 18 agency’s consideration of alternatives. 19 Council, 629 F.Supp.2d at 1055. 20 “Muckleshoot’s rationale See Shasta Resources The court agrees that . . . suggests that the obligations 21 imposed upon the Forest Service were the product of unique 22 circumstances.” 23 here. See id. No such “unique circumstances” exist Plaintiffs are not arguing, and would be hard-pressed to do 24 so, that Alternative A, a slightly smaller scale marina, is 25 “demonstrably more consistent with [BOR’s] ‘basic policy 26 objectives’ or in the public interest[.]” See id. at 1056 (emphasis 27 added). 28 One final distinction between Muckleshoot and the present case - 69 - 1 is that there the corporate defendant conceded that the 2 preliminarily eliminated alternative was a “viable alternative[.]” 3 Muckleshoot, 177 F.3d at 814. And, under applicable Ninth Circuit 4 precedent, “[a] viable but unexamined alternative renders [the] 5 [EIS] inadequate.” 6 omitted). Id. (citation and internal quotation marks In the present case, the viability of Alternative A is 7 far from clear, especially taking into account the County’s 8 statement of need and economic viability. Given the many 9 distinctions between Muckleshoot and the present case, the former 10 has no bearing on the issue of whether, as plaintiffs urge, 11 Reclamation ran afoul of NEPA because purportedly Alternative A is 12 not a meaningful alternative. 13 Viewing the administrative record as a whole demonstrates that 14 Reclamation fulfilled its obligation under NEPA’s alternatives 15 provision. It provided the requisite “brief discussion of 16 reasonable alternatives” by considering the No Action Alternative, 17 Alternative A, and the proposed marina. See 40 C.F.R. § 1508.9(b). 18 Moreover, plaintiffs have not met their burden of showing that 19 Reclamation’s decision to eliminate the No Action Alternative and 20 Alternative A was arbitrary or capricious, an abuse of discretion, 21 or otherwise not in accordance with law. 22 To summarize with respect to the NEPA claims in Count Two, 23 after carefully considering each of plaintiffs’ arguments in that 24 regard, the court finds none of them to be convincing. 25 critical difference between an EA and an EIS. There is a “EAs are by 26 definition simpler documents not subject to the same rigorous 27 scrutiny as an EIS.” Sierra Nevada Forest Protection Campaign v. 28 Rey, 573 F.Supp.2d 1316, 1349 (E.D.Cal. 2008) (citation omitted); - 70 - 1 see also Grand Canyon Trust v. U.S. Bureau of Reclamation, 623 2 F.Supp.2d 1015, 1026 (D.Ariz. 2009) (an EA “need not be 3 extensive[]”). “They are designed to reduce government costs, 4 paperwork and delay through a “concise” public document.” Sierra 5 Nevada Forest, 573 F.Supp.2d at 1349 (citing 40 C.F.R. § 1508.9). 6 Plaintiffs’ summary judgment motion seems to be little more 7 than an attempt to hold Reclamation to NEPA’s more stringent 8 standards governing an EIS. Logically, an “‘EA cannot be both 9 concise and brief and provide detailed answers for every 10 question.’” Id. (quoting Newton County Wildlife Ass'n v. Rogers, 11 141 F.3d 803, 809 (8th Cir. 1998).” Yet, that seems to be precisely 12 what plaintiffs are seeking – “detailed answers for every question” 13 or issue, regardless of how inconsequential, but NEPA does not 14 demand that, at least in the context of an EA. Thus, for the 15 reasons delineated above, the court denies plaintiffs’ motion for 16 summary judgment as to Count Two. Conversely, the court grants the 17 cross-motions for summary judgment by Reclamation and LPMP as to 18 that Count. This relief is proper because plaintiffs did not meet 19 their burden of showing that Reclamation violated NEPA by not 20 preparing a SEIS. Further, plaintiffs did not meet their burden of 21 showing that Reclamation acted arbitrarily, capriciously or abused 22 its discretion with respect to the Final EA’s: (1) calculation of 23 the watercraft usage rate; (2) pump-out system response to public 24 comment; and (3) consideration of the No Action Alternative and 25 Alternative A. 26 III. 27 Clean Air Act Plaintiffs style Count Three of their FAC as a claim for 28 “failure to conduct [a] conformity determination[.]” - 71 - FAC (Doc. 4) 1 at 23:5 (emphasis omitted). As part of their relief, plaintiffs 2 are seeking a declaration that Reclamation “violated the CAA by 3 approving construction of the proposed Scorpion Bay Facility 4 without conducting a conformity determination[.]” 5 ¶ 6:4-6 (emphasis added). Id. at 27, Plaintiffs reframe this count in their 6 summary judgment motion, claiming that the Final EA “violates NEPA” 7 because it “considers only certain ozone and PM10 emissions sources, 8 and ignores motor vehicles altogether as a source of CO emissions.” 9 Pls.’ Mot. (Doc. 150) at 23:7-9. 10 A. 11 “[C]hallenges to conformity determinations may be not brought Standard of Review 12 under the citizen suit provision[]” of the CAA, 42 U.S.C. 13 § 7604(a)(1), as LPMP and Reclamation are quick to note.25 See City 14 of Yakima v. Surface Transportation Board, 46 F.Supp.2d 1092, 1098 15 (E.D.Wash. 1999) (citing, inter alia, Conservation Law Found., 16 Inc., v. Busey, 79 F.3d 1250 (1st Cir. 1996)). Plaintiffs do not 17 dispute that, most likely because they are not relying upon that 18 CAA provision as a basis for Count Three. Instead, plaintiffs 19 respond that their CAA claims, like their NEPA claims, are subject 20 to review under the APA. 21 (citations omitted). See Pls.’ Reply (Doc. 162) at 19:2-3 Plaintiffs’ position is well-taken. As the 22 court stated in Environmental Council of Sacramento v. Slater, 184 23 F.Supp.2d 1016 (E.D.Cal. 2000), “[i]t [is] well established that 24 challenges to agency determinations under the general provisions of 25 the [CAA] are properly analyzed under the APA rather than the 26 citizen provision of the [CAA].” Id. at 1023 (citing, inter alia, 27 28 25 BOR’s Cross-mot. (Doc. 154) at 21:14-15; and LPMP’s Cross-mot. (Doc. 157) at 11 n.4:28. - 72 - 1 Conservation Law Foundation v. Busey, 79 F.3d 1250, 1260 (1st Cir. 2 1996)). 3 So, once again, the court’s review is narrowly circumscribed. 4 It must apply the “familiar default standard of the [APA],” set 5 forth earlier, “and ask whether [Reclamation’s] action was 6 ‘arbitrary, capricious, and abuse of discretion, or otherwise not 7 in accordance with law.’” See Alaska Dep’t of Envtl. Conservation 8 v. EPA, 540 U.S. 461, 496, 124 S.Ct. 983, 157 L.Ed.2d (2004). 9 Arbitrary and capricious review under the APA focuses on “the 10 reasonableness of [the [agency’s] decision-making processes[.]” 11 MacClarence v. U.S. E.P.A., 596 F.3d 1123, 1129 (9th Cir. 2010) 12 (internal quotation marks and citation omitted). 13 To reiterate, this review entails “determin[ing] whether the 14 agency’s decision is founded on a rational connection between the 15 facts found and the choices made and whether [the agency] has 16 committed a clear error of judgment.” River Runners, 593 F.3d at 17 1070 (citation and internal quotation marks omitted). “One example 18 provided by the [Supreme] Court of such a ‘clear error of judgment’ 19 sufficient to constitute arbitrary and capricious agency action is 20 when the agency offer[s] an explanation that runs counter to the 21 evidence before the agency, or is so implausible that it could not 22 be ascribed to a difference in view or the product of agency 23 expertise.” Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir.) 24 (citation and internal quotation marks omitted), amended, 352 F.3d 25 1186 (9th Cir. 2003). By the same token, “where, as here, a court 26 reviews an agency action involv[ing] primarily issues of fact, and 27 where analysis of the relevant documents requires a high level of 28 technical expertise, [the court] must defer to the informed - 73 - 1 discretion of the responsible federal agenc[y].” Latino Issues 2 Forum, 558 F.3d at 941 (citations and internal quotation marks 3 omitted). Likewise, “[e]ven when an agency explains its decision 4 with less than ideal clarity, a reviewing court will not upset the 5 decision on that account if the agency’s path may reasonably be 6 discerned.” Alaska Dep’t of Envtl. Conservation, 540 U.S. at 497, 7 125 S.Ct. 983. 8 Agency deference notwithstanding, this court’s overarching 9 task is to “ensure that [Reclamation] has taken the requisite hard 10 look at the environmental consequences of [the] proposed [marina], 11 carefully reviewing the record to ascertain whether [Reclamation’s] 12 decision is founded on a reasoned evaluation of the relevant 13 factors.” Te-Moak Tribe, 2010 WL 2431001, at *4 (citation 14 omitted). Finally it bears repeating that plaintiffs have the 15 burden of proof, as the party challenging Reclamation’s action as 16 arbitrary and capricious. 17 S.Ct. 814. See Overton Park, 401 U.S. at 416, 91 “‘Indeed, even assuming the [agency] made missteps 18 . . . the burden is on petitioners to demonstrate that the 19 [agency's] ultimate conclusions are unreasonable.’” George v. Bay 20 Area Rapid Transit, 577 F.3d 1005, 1001 (9th Cir. 2009) (alterations 21 and ellipses in original) (quoting City of Olmsted Falls, Ohio v. 22 FAA, 292 F.3d 261, 271 (D.C.Cir. 2002)). This is a heavy, although 23 not insurmountable, burden. 24 B. 25 The CAA “establishes a comprehensive program for controlling Statutory and Regulatory Framework 26 and improving the United States’ air quality through state and 27 federal regulation.” Latino Issues Forum, 558 F.3d at 938. 28 Pursuant to that Act, the EPA must set national ambient air quality - 74 - 1 standards (“NAAQS”) for air pollutants. 2 2003). 42 U.S.C. § 7409 (West States, in turn, “are responsible for ensuring that their 3 air quality meets the NAAQS.” Latino Issues Forum, 558 F.3d at 938 4 (citing 42 U.S.C. § 7407(a)). States maintain the NAAQs in part 5 through the development of a “State Implementation Plan” or “SIP”. 6 42 U.S.C. § 7410(a)(1). 7 “For planning purposes, EPA has divided each state into 8 separate “air quality control regions.” Natural Resources Defense 9 Council, Inc. v. South Coast Air Quality Management District, 2010 10 WL 939990, at *1 (C.D.Cal. Jan. 7, 2010) (citing 42 U.S.C. § 7407). 11 “EPA classifies each region based on whether the region meets the 12 NAAQS.” Id. (citing 42 U.S.C. § 7407(d)); 40 C.F.R. Part 81, 13 Subpart C). “[E]ach region is designated as being either in 14 attainment or nonattainment, or as unclassifiable with respect to 15 each of the NAAQS.” Latino Issues Forum, 558 F.3d at 938 (citing 16 42 U.S.C. § 7407(d)). Pursuant to the CAA, “federal projects” must 17 “‘conform’ to emissions limits on six criteria pollutants 18 established in the [SIP].” City of Las Vegas, Nev. v. F.A.A., 570 19 F.3d 1109, 1117 (9th Cir. 2009) (citing 42 U.S.C. § 7506(c)(1)). 20 “A federal agency must conduct a ‘conformity determination’ 21 analysis for each criteria pollutant where the proposed federal 22 action would cause the total of direct and indirect emissions of 23 the pollutant in a nonattainment or maintenance area to equal or 24 exceed certain rates.” City of Las Vegas, 570 F.3d at 1117 (citing 25 40 C.F.R. § 93.13(b)). 26 C. 27 The three criteria pollutants at issue here are carbon Summary of Arguments 28 - 75 - 1 monoxide (“CO”); PM10; and ozone.26 As the Final EA describes it, 2 “[a] portion of the project area lies within an area designated as 3 ‘maintenance’ for CO[.]” Admin. R. at 50. Additionally, “the 4 project area is located within an area designated as being in [a] 5 serious nonattainment for PM10[.]” Id. at 48. Lastly, “a portion of 6 the project area falls within an area designated as being in 7 nonattainment for the 8-hour ozone standard[.]” Id. at 49. Based 8 upon the foregoing, the parties agree that the governing de minimis 9 rates are: (1) 100 tons per year for CO; (2) 100 tons per year for 10 ozone; and (3) 70 tons per year for PM10. See 40 C.F.R. § 93.15327; 11 and Arizona Administrative Code R18-2-1438. 12 There is a fundamental disagreement though arising from 13 Reclamation’s determination that: 14 Air emissions attributable to the proposed project for carbon monoxide, ozone, and [PM10], would not exceed the de minimis thresholds which would require that a conformity determination be conducted, in accordance with the [EPA’s] General Conformity Rule. 15 16 17 18 Admin. R., Vol. 3 (FONSI) at 8. Plaintiffs contend that that 19 determination was “based on incomplete information[,]” Pls.’ Mot. 20 Summ. J. (Doc. 150) at 21:2, whereas emphasizing the process that 21 the Final EA used to reach that conclusion, defendants respond that 22 Reclamation “properly considered air quality issues.” LPMP’s 23 Cross-mot. (Doc. 157) at 11:13; and BOR’s Reply (Doc. 164) at 14:9. 24 25 26 27 26 “Because ozone is not produced directly, EPA focuses on emission of its precursors: nitrogen oxides (‘NOX emissions’) and volatile organic compounds (‘VOC emissions’).” Border Power Plant Working Group v. Dep’t of Energy, 467 F.Supp.2d 1040, 1054 (S.D.Cal. 2006) (citing 40 C.F.R. § 51.852). There is no need to distinguish between those precursors here. Thus, hereinafter the court will refer generically to ozone emissions. 27 28 Although, as will be seen, EPA recently revised the General Conformity regulations, including section 93.153, those revisions left intact these particular rates. - 76 - 1 Somewhat tellingly, although the project at issue is a marina, 2 the primary thrust of plaintiffs’ argument is that the Final EA 3 improperly calculated vehicular emissions. Plaintiffs argue that 4 by assuming “the average trip per vehicle into/out from [the Park] 5 is about 10 miles[,]” the Final EA “clearly understates PM10 and 6 ozone emissions” from vehicular traffic. Pls.’ Mot. Summ. J (Doc. 7 150) at 21:17-18 (citation and internal quotation marks omitted). 8 Plaintiffs further claim that the Final EA “ignores motor vehicles 9 altogether as a source of CO emissions.” Id. at 23:8-9. Turning 10 to other potential sources of CO emissions, which will be more 11 fully discussed below, plaintiffs argue that such emissions are 12 “indirect emissions” within the meaning of 40 C.F.R. § 93.152. 13 Hence, plaintiffs maintain that the Final EA should have included 14 those emissions, but it did not. 15 Plaintiffs only disagreement with the Final EA’s calculation 16 of watercraft emissions is that it improperly “ignore[d]” diesel 17 engine emissions “because the proposed marina will not sell diesel 18 fuel.” Id. at 21:12-13 (footnote omitted). For all of these 19 reasons, plaintiffs charge Reclamation with “taking a myopic view 20 of the proposed marina by failing to consider all of the ozone, PM10 21 and CO emissions it will produce,” in “violat[ion] [of] NEPA.” Id. 22 at 23:6-8. 23 Concentrating primarily upon watercraft emissions, Reclamation 24 emphasizes the process in which it engaged in calculating potential 25 air emissions for PM10, ozone and CO emissions. In their comment 26 letters as to the Draft EA and the RDEA, plaintiffs claimed that 27 “Reclamation’s methodology[] used to calculate de minimis 28 thresholds for CO, ozone, and PM10 was flawed.” - 77 - Admin. R., at 47. 1 Turning to MCAQ staff for their “guidance and expertise,” that 2 staff explained the methodology used in EPA models “and how the 3 default values used in those models are applied” locally. Id. 4 “For calculating emissions for nonroad engines, such as watercraft, 5 EPA’s guidance recommends that default equipment population and 6 activity levels be changed if local data are available[.]” Id. 7 Local data were then derived from a survey “of engines located at 8 Pleasant Harbor Marina.” Id. That “partial inventory” was 9 “conducted by [LPMP] staff[.]” Id. at D-2. Reclamation “reviewed 10 and modified [those] estimates[;]” id.; independently analyzed the 11 emissions data it received; revised the calculations; and explained 12 those adjustments in the Final EA and a 19 page appendix thereto 13 entitled, “Assumptions and Calculations Used for General Conformity 14 Rule Determination[.]” Id. at 45-15; and App. D thereto. These 15 actions, Reclamation maintains satisfy NEPA’s “hard look” 16 requirement. 17 LPMP’s cross-motion echoes Reclamation’s process argument, 18 stressing Reclamation’s overall “conservative” approach in finding 19 that a conformity rule determination was not required. See, e.g., 20 LPMP’s Cross-mot. (Doc. 157) at 15:20 and 16:7 and 16. Then LPMP 21 takes a different approach. It contends that Reclamation “made a 22 reasoned decision to exclude emissions from vehicles outside the 23 Park in its conformity determination because they are not indirect 24 emissions required under the CAA.” LPMP’s Cross-mot. (Doc. 157) at 25 16:9-11 (emphasis added); see also id. at 18:9-11 (same). LPMP 26 further asserts that Reclamation “reasonably excluded” CO emissions 27 from vehicles outside LPRP because “such emissions are not indirect 28 - 78 - 1 emissions under 40 CFR § 51.85228.” 2 added). Id. at 16:24-26 (emphasis As to other potential sources of CO emissions, LPMP 3 contends that because such emissions will occur outside the CO 4 maintenance area, Reclamation did not have to include those 5 emissions in its air quality impact assessment. Basically, it is 6 LPMP’s position that plaintiffs have not met their burden of 7 showing that Reclamation “abused its discretion or otherwise acted 8 arbitrarily or capriciously with respect to air quality issues.” 9 Id. at 19:24-25. 10 Insofar as PM10 and ozone emissions are concerned, in their 11 responses to defendants’ cross-motions, plaintiffs reiterate that 12 the Final EA “grossly understates” those emissions because of the 13 ten-mile round trip assumption. Pls.’ Reply (Doc. 161) at 13:2; 14 see also Pls.’ Reply (Doc. 162) at 22:13 (that assumption 15 “drastically understates” vehicle mileage). Unlike their summary 16 judgment motion, however, in their replies plaintiffs do not 17 mention the other possible sources of PM10 and ozone. In sharp 18 contrast, as explained in section 3(c) below, in their replies 19 plaintiffs greatly expand the scope of their initial arguments 20 pertaining to CO emissions 21 D. 22 23 - but to no avail. Analysis 1. Drifting Emissions The court first will address plaintiffs’ argument common to 24 all three pollutants - the Final EA improperly failed to consider 25 26 27 28 28 On April 5, 2010, the EPA revised the General Conformity Regulations. 75 Fed. Reg. 17254. Those revisions became effective on July 6, 2010. Id. As part of those revisions, One of those revisions was to delete this particular section of the C.F.R., among others, because it “merely repeated the language in 40 C.F.R. . . . § 93.152.” 75 Fed. Reg. 17254, § VI(A). Accordingly, hereinafter the court will refer only to section 93.152. - 79 - 1 drifting emissions from vehicular traffic. As to ozone and PM10 2 vehicular emissions, plaintiffs maintain that the Final EA should 3 have taken into account such emissions occurring outside the LPRP 4 boundaries. Similarly, plaintiffs contend that the Final EA should 5 have considered CO emissions even if they did not originate in the 6 CO maintenance area, because they could have drifted from an 7 adjacent area into the maintenance area. These potentially 8 drifting emissions “will not respect . . . boundaries[,]” as 9 plaintiffs put it. Pls.’ Reply (Doc. 162) at 20:16-17 (citation 10 omitted); and Pls.’ Reply (Doc. 161) at 13:15 (citation omitted). 11 While having some superficial appeal, there is no legal basis 12 for this argument. Morever, plaintiffs have waived their right to 13 challenge the Final EA as to drifting emissions because they did 14 not raise that issue during the administrative process. As the 15 Supreme Court has explained, “[p]ersons challenging an agency’s 16 compliance with NEPA must ‘structure their participation so that it 17 . . . alerts the agency to the [parties’] position and 18 contentions,’ in order to allow the agency to give the issue 19 meaningful consideration.” Dep’t of Transp. v. Pub. Citizen, 541 20 U.S. 752, 764, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting Vt. 21 Yankee Power, 435 U.S. at 553, 98 S.Ct. 1197). 22 Much like Public Citizen, although plaintiffs submitted three 23 comment letters during the NEPA process,29 they never criticized the 24 Final EA’s conformity determination for not including drifting 25 26 27 28 29 During the administrative process, written comments were prepared by the Washington, D.C. office of Steptoe & Johnson, LLP, the lawyers at the time for plaintiffs Maule-Ffinch and the Pensus Group. With that clarification, for the sake of brevity, hereinafter this decision will not make that distinction. It will simply refer to the comments as having been made on behalf of all plaintiffs. - 80 - 1 emissions. See id. (“None of the respondents identified in their 2 comments any rulemaking alternatives beyond those evaluated in the 3 EA, and none urged the [agency] to consider alternatives.”) In 4 those comment letters, plaintiffs detailed what they perceived to 5 be a number of flaws in Reclamation’s conclusion that a conformity 6 determination was not required. Until now, however, plaintiffs 7 have not mentioned a failure to account for drifting emissions. 8 Reclamation therefore did not have an opportunity to address that 9 issue during the administrative process. Consequently, plaintiffs 10 have waived any objection to the Final EA on the ground that it did 11 not consider drifting emissions when arriving at its conformity 12 determination.30 13 See id. Assuming arguendo that plaintiffs did not waive their argument 14 as to drifting emissions, this argument lacks merit. Neither of 15 the two cases to which plaintiffs cite have any bearing whatsoever 16 on the present case. In League of Wilderness Defenders v. 17 Forsgren, 309 F.3d 1181 (9th Cir. 2002), “the Forest Service 18 prepared an EIS to identify and analyze the potential impacts” of a 19 “program of annual aerial insecticide spraying over 628,000 acres 20 of national forest lands” in two states. Id. at 1191 and 1182. 21 The Ninth Circuit held that the EIS did not “adequately analyze the 22 issue of pesticide drift[]” where it did “not discuss . . . 23 mitigation measures with respect to drift into adjacent areas . . . 24 25 26 27 28 30 The court is well aware that Reclamation “bears the primary responsibility to ensure that it complies with NEPA, . . . , and an EA’s . . . flaws might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge the proposed action.” Public Citizen, 541 U.S. at 765, 124 S.Ct. 2204. That is not the situation here though. A failure to consider drifting vehicular emissions in the context of this particular marina project is not “so obvious [a] flaw[]” that plaintiffs were not required to point it out specifically during the NEPA process. See id. (emphasis added). - 81 - 1 outside the target spray area. 2 Id. at 1191-92. Forsgren is distinguishable both factually and legally. The 3 drift at issue in Forsgren is on a scale exponentially greater than 4 the potential drifting emissions herein. There is a vast 5 difference between not taking into account pesticide drift from 6 aerial spraying occurring over half a million acres of national 7 forest, and not taking into account vehicular emissions in 8 connection with a marina. Further, in Forsgren the issue was 9 whether the EIS included a “reasonably complete discussion of 10 possible mitigation measures” which the Supreme Court requires. 11 Id. at 1192 (citation and internal quotation marks omitted). The 12 General Conformity Rule and its attendant analysis were not at 13 issue in Forsgren, as they are here. 14 Plaintiffs’ reliance upon North Carolina v. Tenn. Valley 15 Auth., 593 F.Supp.2d 812, 829-34 (W.D.N.C. 2009), [stay denied, 16 2009 WL 2497934 (W.D.N.C. Aug. 14, 2009)]) is, if possible, even 17 more attenuated than their reliance upon Forsgren. The former is 18 not in any way relevant to the issues now before this court. North 19 Carolina involved an adjudication of a state law public nuisance 20 claim against TVA for environmental and health effects allegedly 21 caused by coal-fired power plants. It had nothing to do with the 22 EPA’s General Conformity Rule and analyzing pollutants in 23 accordance therewith. 24 Partially quoting from North Carolina, plaintiffs state that 25 “‘emissions from a source located outside a state[,] . . . can 26 still have significant impact on that state’s air quality[.]]” 27 Pls.’ Reply (Doc. 162) at 20:19-21) (quoting North Carolina, 593 28 F.Supp.2d at 825. The omitted phrase was “particularly an upwind - 82 - 1 source.” North Carolina, 593 F.Supp.2d at 825, ¶ 53 (citation 2 omitted). Regardless, that was one of the court’s many factual 3 findings therein unique to that case. It certainly does suggest, 4 as plaintiffs mistakenly believe, because emissions can drift, they 5 must be included in making a conformity rule determination. 6 Having found no merit to plaintiffs’ argument that the Final 7 EA improperly failed to consider drifting ozone, CO and PM10 8 vehicular emissions, the court will turn to plaintiffs’ remaining 9 arguments. 10 11 2. PM10 and Ozone Vehicle Emissions In arriving at “Total Recurring31 PM10 Emissions” of 16.03 tons 12 per year and “Total Recurring Ozone Emissions” of 37.69 tons per 13 year, Admin. R. at D-15 and D-17, the Final EA employs several 14 variables and assumptions. The Final EA also takes into account 15 these emissions from several different sources. Having cherry 16 picked the administrative record, plaintiffs disagree with only a 17 single assumption. They dispute the Final EA’s use of a ten mile 18 round trip assumption to calculate vehicular PM10 and ozone 19 emissions. 20 The Final EA states that PM10 and ozone emissions “from 21 increased traffic resulting from the proposed project” were 22 “calculated conservatively,” and based upon three assumptions. 23 at 48 and 49. Id. First, “the average trip per vehicle into/out from 24 LPRP is about 10 miles[.]” Id. Second, “every slip and dry storage 25 26 27 28 31 For each pollutant, the Final EA contains two broad classifications of emissions – those from construction activities and those deemed to be “recurring.” Presumably the former are essentially one-time emissions. Plaintiffs are not disputing any of the findings as to construction emissions. Further, they disagree with only a few discrete aspects of the Final EA’s calculations as to recurring emissions. - 83 - 1 area is rented (1,000 boats),” that is, 100% occupancy. Id. 2 Third, “20 percent of boat owners visit every day[]” of the year. 3 Id. Based upon those assumptions, the Final EA “[e]stimate[s] PM10 4 emissions from onroad mobile sources [to] be about 2 tons per 5 year.” Id. at 48. Relying upon those same assumptions, the Final 6 EA projects “approximately three tons per year of . . . ozone . . . 7 would be emitted annually.” 8 Id. at 49. Plaintiffs disagree with only one of the three assumptions in 9 that hypothesis. They do not challenge the 100% occupancy 10 assumption, or the assumption that every single day of the year 20% 11 of boat owners will visit the marina. Nonetheless, plaintiffs 12 assert that that assumption “clearly understates PM10 and ozone 13 emissions, because it is obvious that the average visitor to the 14 Lake will drive more than five miles one-way from home to reach the 15 Lake.” 16 Pls.’ Mot. Summ. J. (Doc. 150) at 21:18 - 22:1-2. Reclamation’s response is silent as to plaintiffs’ 17 disagreement with the ten mile round trip assumption. With no 18 rationale, LPMP merely asserts that among other decisions by 19 Reclamation, use of the that assumption was “a ‘conservative’ 20 decision regarding the distance to the park boundary.’” LPMP’s 21 Cross-mot. (Doc. 157) at 16:16. 22 Regardless, the fact remains that the burden is on plaintiffs 23 to show that the Final EA’s use of the ten mile round trip 24 assumption was arbitrary, capricious, an abuse of discretion, or 25 otherwise not in accordance with law. 26 burden. Plaintiffs have not met that Because plaintiffs’ arguments in their memoranda on this 27 particular issue were brief, the court looked elsewhere for 28 elucidation. PSOF does provide some insight, albeit not much. PSOF - 84 - 1 asserts that “the evidence in the [“Administrative Record] suggests 2 that assuming 10-miles-round-trip per vehicle visiting the Lake 3 would grossly understate the vehicular traffic that will be 4 generated by the proposed marina.” 5 ¶ 105:18-20. PSOF (Doc. 151) at 27, Overlooking the fact that this argument is 6 procedurally improper,32 based upon the just quoted language, the 7 court gleans that plaintiffs are arguing that the PM10 and ozone 8 vehicular calculations “run[] counter to the evidence” before 9 Reclamation due to use of the ten-mile assumption. See Sierra 10 Club, 346 F.3d at 961 (citation and internal quotation marks 11 omitted). 12 This argument is unavailing. In faulting the Final EA’s use of a ten mile round trip 13 assumption, plaintiffs state that “[t]here is no residential 14 population for eight miles to the east of the Lake and five miles 15 to the south, with ‘minimal population for many miles to the west 16 and the north.’” Pls’ Mot. Summ. J. (Doc. 150) at 22:2-4 (quoting 17 PSOF (Doc. 151) at ¶ 106). That statement is taken almost verbatim 18 from plaintiffs’ August 2006 comment letter to Reclamation 19 regarding the Draft EA. See Admin. R. at H-83. There is nothing 20 in that comment letter substantiating plaintiffs’ view, however. 21 Plaintiffs do not, for example, rely upon or cite to any maps or 22 census figures or other pertinent figures from governmental 23 agencies. Plaintiffs’ unsupported and unsubstantiated views are 24 not tantamount to record evidence. Plaintiffs do not designate any 25 26 27 28 32 This argument is in direct contravention of LRCiv 56.1, which “does not permit explanation and argument supporting the party’s position to be included in the . . . statement of facts.” Marceau v. Int’l Broth. of Elec. Workers, 618 F.Supp.2d 1127, 1141 (D.Ariz. 2009) (citation and internal quotation marks omitted). This is not the only such legal argument in PSOF, but the court is disregarding all others. - 85 - 1 other part of the administrative record to support their argument 2 as to the existence of residential population areas vis-a-vis the 3 proposed marina. Thus, they have not shown that the ten mile round 4 trip assumption runs counter to the evidence before Reclamation. 5 Apparently realizing the futility of disputing the ten mile 6 assumption based upon the record evidence, as an afterthought 7 plaintiffs note that “[i]n discussing the allegedly unmet demand 8 for water recreation, the [f]inal EA mentions the population growth 9 of Peoria, Surprise, and Buckeye.” 10 at 21, n. 12. Pls.’ Mot. Summ. J. (Doc. 150) Yet, the Final EA did not consider driving distances 11 from those locations when calculating vehicular PM10 and ozone 12 emissions. Plaintiffs thus ask this court to take judicial notice 13 of the location of the “main post office branches” in those 14 municipalities, id., as well as of “the distances from th[os]e 15 . . . post offices” to LPRP. Pls.’ Reply (Doc. 162) at 22:22-23 16 (citation omitted). 17 This request is problematic on several levels. First, these 18 post office locations and claimed mileages are not in the 19 administrative record. Thus, plaintiffs’ request is nothing more 20 than a transparent attempt to expand the administrative record – 21 something upon which this court has previously looked with 22 disfavor. See Protect Lake Pleasant IV, (Doc. 97) (May 6, 2008) 23 (denying plaintiffs’ motion for extra-record discovery). Second, 24 the references in the Final EA to the growth rates for Peoria, 25 Surprise and Buckeye were used as “example[s]” of the “exponential 26 growth[]” of “several communities in the northern and western 27 portions of Maricopa County[.]” Admin. R., at 4. 28 mentioned for any other reason. - 86 - They were not 1 Third, to be sure, plaintiffs did cite authority supporting 2 the proposition that a court may take judicial notice of the 3 location of a federal building, such as United States Post Office. 4 Pls.’ Mot. Summ. J. (Doc. 150) at 21, n. 21 (citing Myers 5 Investigative & Sec. Servs. v. United States, 47 Fed. Cl. 288, 297 6 (2000)). In paragraph 108 of their statement of facts, plaintiffs 7 cite to the United States Post Office website for post office 8 locations, but they omit any sources for corresponding mileage. 9 See PSOF (Doc. 151) at 28, ¶ 108. Therefore, plaintiffs did not 10 provide any basis for taking judicial notice of the mileage from 11 those post offices to LPRP. 12 Fourth, even if the court were to take judicial notice of 13 these Post Office mileages, their relevance is tangential at best. 14 The court would be purely speculating if it were to try and 15 correlate those distances to the number of vehicles that would be 16 traveling from those areas to LPRP due to the new marina. So in 17 its discretion, the court declines to take judicial notice of the 18 distances between the Peoria, Surprise and Buckeye United States 19 Post Offices and LPRP. Necessarily then, it will not take those 20 distances into account in determining whether the Final EA’s use of 21 a ten mile round-trip assumption was arbitrary or capricious. In 22 short, plaintiffs have not met their burden of showing that the 23 Final EA’s use of a ten mile round-trip assumption constitutes 24 clear error of judgment. 25 Assuming arguendo that use of that ten-mile assumption was 26 improper, still, plaintiffs have not shown that the Final EA 27 violated NEPA because it underestimated vehicular PM10 and ozone 28 emissions. According to the Final EA, total recurring vehicular - 87 - 1 PM10 emissions are 42.82 pounds per year, or, in the relevant 2 metric, 0.02141 tons per year. Admin. R. at D-15. The Final EA 3 indicates 3.07 tons per year of recurring vehicular ozone 4 emissions. Id. at D-16. Keeping in mind that here the de minimis 5 levels are 100 tons per year for ozone and 70 tons per year for 6 PM10, even in the abstract, the 3.07 tons per year of ozone and 7 0.0214 tons per year of PM10 are relatively inconsequential figures. 8 Putting these numbers in context makes them analytically more 9 meaningful, and further demonstrates that plaintiffs have not met 10 their burden of showing that Reclamation “committed a ‘clear error 11 of judgment sufficient’ to constitute arbitrary and capricious 12 agency action[]” in calculating vehicular PM10 and ozone emissions. 13 See Sierra Club, 346 F.3d at 961. With respect to PM10, the Final 14 EA attributes 18.61 tons of such emissions from construction and 15 16.03 tons per year for recurring emissions, yielding 34.64 tons. 16 Id. at D-13 and D-15. So even assuming the construction emissions 17 are not one-time, the total PM10 emissions still are roughly 50% 18 below the allowable level of 70 tons per year for a nonattainment 19 area. Additionally, as calculated, PM10 vehicular emissions are 20 only 1.15% of PM10 emissions from “Onroad Mobile Sources[,]” and 21 only 0.13% of the total recurring PM10 emissions. Vehicular PM10 22 emissions, therefore, are a minuscule part of the total recurring 23 PM10 emissions. Because of that, even significantly increasing the 24 ten mile round trip assumption would not impact the final PM10 25 vehicular emissions so as to render the overall PM10 emissions 26 calculations arbitrary or capricious. 27 To illustrate, quadrupling the round trip assumption to forty 28 miles, would yield a total of 171.26 pounds per year of recurring - 88 - 1 vehicular PM10 emissions. Replacing that number with the 42.82 2 pounds per year in the Final EA would result in an increase from 3 1.86 tons per year to 1.92 tons per year for total recurring PM10 4 emissions from all three onroad mobile sources. See id. at D-15. 5 So even with that increase, PM10 recurring emissions from vehicles 6 are negligible in terms of total PM10 recurring emissions. 7 The same is true of vehicular ozone emissions. The de minimis 8 limit here is 100 tons per year, as mentioned at the outset. The 9 Final EA specifies .02 tons for construction emissions, and 37.69 10 tons per year for recurring ozone emissions, for a total of 37.71 11 tons. Id. at D-16 - D-17. Not surprisingly, the dominant source 12 of recurring ozone emissions is “Pleasure Craft” – 34.08 tons per 13 year. Id. at D-16. Recurring vehicular ozone emissions 14 represented in the Final EA, in contrast, account for a relatively 15 minor 3.07 tons per year, or nine percent of the total recurring 16 ozone emissions. See id. at D-16. So again, quadrupling the ten 17 mile round trip assumption would mean a corresponding quadrupling 18 from 3.07 tons per year of vehicular ozone emissions to 12.28 tons 19 per year. Importantly though, even adding 12.28 tons per year to 20 the other sources of recurring ozone emissions, the end result 21 would be 46.90 tons per year - still less than half of the 100 22 tons per year de minimus level for ozone in a nonattainment area. 23 This holds true even adding the meager .02 tons for construction 24 emissions. 25 As the foregoing shows, especially examining vehicular PM10 26 and ozone emissions in the context of the entire administrative 27 record, plaintiffs have not met their burden of “demonstrat[ing] 28 that [Reclamation’s] ultimate conclusions” as to those emissions - 89 - 1 “are unreasonable.” See George, 577 F.3d at 1001 (9th Cir. 2009) 2 (citation and internal quotation marks omitted). 3 Lastly, although not dispositive, the court cannot overlook 4 the APA’s equivalent of the sporting maxim, “no harm, no foul.” 5 Even assuming arguendo that Reclamation improperly used a ten mile 6 round-trip assumption for calculating vehicular PM10 and ozone 7 emissions, as discussed above, plaintiffs have not shown that the 8 Final EA’s estimations of those emissions would equal or exceed de 9 minimis threshold levels, so as to require a conformity 10 determination. As the Court reasoned in County of Rockland v. 11 F.A.A., 335 Fed.Appx. 52 (D.C.Cir. 2009)33, cert. denied, ___ U.S. 12 ___, 130 S.Ct. 1168, 78 USLW 3322 (2010), “[a]ssuming the agency 13 erred when it failed to inventory emissions, the petitioners still 14 have failed to identify any way in which the error was or might 15 have been harmful.” Id. at 57 (citing 5 U.S.C. § 706 (“due account 16 shall be taken of the rule of prejudicial error” when court reviews 17 agency action). 18 19 3. Carbon Monoxide Emissions “Pleasure Craft” are the sole source of recurring CO emissions 20 in the Final EA, at 63.60 tons per year. See Admin. R. at D-18. 21 The Final EA concluded that “none will occur in the maintenance 22 area[.]” Id. The justification for excluding vehicular CO 23 emissions was “because the [CO] maintenance area within the 24 Maricopa County portion of the lake extends from the middle of the 25 lake eastward, and vehicular traffic related to the new marina 26 would occur on the western portion of the LPRP, outside the [CO] 27 28 33 The court may cite this unpublished opinion because it was issued after January 1, 2007. Fed. R. App. P. 32.1(a); U.S.Ct. of App. D.C.Cir. Rule 36(e)(2). - 90 - 1 maintenance area.” Id. at 50 (emphasis added). “For this same 2 reason,” the Final EA also excluded CO “emissions from equipment 3 used to haul boats between the dry stack storage building and boat 4 ramp . . . , since these facilities would be located west of the CO 5 maintenance area.” Id. (emphasis added). For a host of reasons, 6 plaintiffs contest the Final EA’s exclusion of these sources of CO 7 emissions, as well as the exclusion of CO emissions from cars 8 idling at the boat ramps and cars driving on the marina’s unpaved 9 parking lots. 10 11 a. “Indirect Emissions” Before addressing plaintiffs’ arguments, the court is 12 compelled to address LPMP’s contention that Reclamation “made a 13 reasoned decision to exclude emissions from vehicles outside the 14 Park in its conformity determination because they are not indirect 15 emissions required under the CAA.” LPMP’s Cross-mot. (Doc. 157) at 16 16:9-11 (footnote and emphasis added); see also id. at 18:9-11 17 (same). The pertinent EPA regulation provides that “[f]or Federal 18 actions . . . , a conformity determination is required for each 19 criteria pollutant or precursor where the total of direct and 20 indirect emissions of the criteria pollutant or precursor in a 21 nonattainment or maintenance area caused by a federal action would 22 equal or exceed” the stated emission rates. 40 C.F.R. § 91.153(b). 23 “Indirect emissions” and “direct emissions” are regulatory terms of 24 art. 25 26 “Indirect emissions” are: (1) [c]aused by the Federal action, but may occur later in time and/or may be farther removed in distance from the action itself but are still reasonably foreseeable; and 27 28 (2) The Federal agency can practicably control and will maintain control over due to a continuing program responsibility of the Federal agency. - 91 - 1 40 C.F.R. § 93.152.34 “Direct emissions . . . are caused or 2 initiated by the Federal action and occur at the same time and 3 place as the action.” 4 Id. Relatively, LPMP devotes a significant part of its cross- 5 motion as to Count Three arguing that Reclamation “properly 6 excluded” CO vehicular emissions from the Final EA because they are 7 “not indirect emissions[.]” 8 11. LPMP’s Cross-mot. (Doc. 157) at 18:10- More specifically, LPMP argues that Reclamation “does not have 9 any practicable control over future vehicle emissions outside the 10 Park.” Id. at 18:1-2. Critically, that is not the Final EA’s 11 stated rationale for excluding certain CO emissions. 12 LPMP gives the impression that the Final EA refers to “direct” 13 or “indirect” emissions, but it does not. LPMP relies upon pages 14 47-51 of the Final EA and Appendix D thereto, but those pages are 15 silent as to “indirect” or “direct” emissions. Further, it cannot 16 34 17 18 19 20 In its recent revisions to the General Conformity regulations, the EPA did modify this definition, among others. Effective July 6, 2010, 40 C.F.R. § 93.152 defines “indirect emissions to “mean[] those emissions of a criteria pollutant or its precursors: (1) That are caused or initiated by the Federal action and originate in the same nonattainment or maintenance area but occur at a different time or place as the action; (2) That are reasonably foreseeable; 21 (3) That the agency can practically control; and 22 23 24 25 26 27 28 (4) For which the agency has continuing program responsibility. For the purposes of this definition, even if a Federal licensing, rulemaking or other approving action is a required initial step for a subsequent activity that causes emissions, such initial steps do not mean that a Federal agency can practically control any resulting emissions.” 40 C.F.R. § 40 C.F.R. § 93.152. Nonetheless, the court will apply the General Conformity regulations in place at the time of this action. See Salazar-Paucar v. I.N.S., 281 F.3d 1069, 1074 n. 3 (9th Cir.), amended by 290 F.3d 964 (9th Cir. 2002); see also Bohrmann v. Maine Yankee Atomic Power Co., 926 F.Supp. 211, 218 (D.Me. 1996) (applying regulations in effect at time of incident that gave rise to action, rather than revised regulations that took effect while action was pending). - 92 - 1 be inferred from the cited portions of the record that Reclamation 2 excluded vehicular CO emissions because ostensibly they were 3 “indirect.” There is no suggestion, for example, that those types 4 of emissions were excluded because Reclamation could not 5 “practicably control” them – an essential element of “indirect 6 emissions.” See 40 C.F.R. § 93.152. The Final EA also does not 7 justify excluding CO emissions on the basis that Reclamation “can 8 practicably control and will maintain control over [such emissions] 9 due to a continuing program responsibility of [Reclamation].” 10 id. See Nor does the Final EA exclude CO vehicular emissions because 11 they are not “reasonably foreseeable[.]” See 40 C.F.R. § 93.152. 12 There is simply no way to read the Final EA as excluding CO 13 emissions because they are not “indirect emissions” within the 14 meaning of 40 C.F.R. §93.152. 15 Moreover, as will be more fully discussed herein, the stated 16 rationale for excluding vehicular CO emissions was because they 17 were “outside the maintenance area[]” – not because they were 18 “indirect emissions.” See Admin. R. at 50. For these reasons, the 19 rationale which LPMP is advancing in its cross-motion, i.e., that 20 vehicular emissions are “indirect,” and hence excludable from the 21 conformity rule determination, is an impermissible “post hoc” 22 rationalization. See Presidio Golf Club v. National Park Service, 23 155 F.3d 1153, 1164 (9th Cir. 1998) (citation omitted) (“The Supreme 24 Court has forbidden district courts from relying upon . . . ‘post 25 hoc’ rationalizations for agency action.”); Soda Mountain 26 Wilderness Council v. Norton, 424 F.Supp.2d 1241, 1263 (E.D.Cal. 27 2006) (citations omitted) (“It is established that the court is not 28 permitted to accept post-hoc rationalizations.”) - 93 - As such, the 1 court cannot accept this rationalization for Reclamation’s decision 2 to exclude vehicle emissions when calculating CO emissions for the 3 proposed marina. There is no valid reason for departing from the 4 general prohibition against post hoc rationalization where, as 5 here, it is being offered by the defendant-intervenor rather than 6 by the agency. 7 8 b. Purported “Zero Increase” in CO Emissions Shifting to plaintiffs’ CO emissions arguments, plaintiffs 9 charge Reclamation with excluding vehicular CO emissions based upon 10 the “obviously wrong . . . assumption that the proposed marina will 11 result in zero increase in CO emissions from motor vehicles.” 12 Pls.’ Mot. Summ. J. (Doc. 150) at 22:7-8; see also Pls.’ Reply 13 (Doc. 162) at 19:26-28 (The “FONSI should be set aside because it 14 is based on the unsupportable premise that motor vehicles driving 15 to or from the proposed marina will generate no CO emissions.”). 16 The court does not read the Final EA in the same way as do 17 plaintiffs. If, as plaintiffs posit, the Final EA excluded 18 vehicular CO emissions because “the proposed marina will result in 19 zero increase in CO emissions from motor vehicles[,]” that would be 20 illogical. See id. at 22:8. That was not the Final EA’s 21 justification though. 22 The Final EA excludes vehicular CO emissions because of where 23 they will occur – not because they will not occur at all. 24 Vehicular CO emissions were excluded because “none will occur in 25 the maintenance area[.]” See Admin. R. at D-18. Those emissions 26 will not occur in the CO maintenance area because that area “does 27 not include Castle Hot Springs Road which is on the west boundary 28 of the lake and is the primary entrance road into the west side of - 94 - 1 the lake[,]” where the new marina is located. BOR’s Cross-mot. 2 (Doc. 154) at 22:29-21; see also Admin. R. at D-18; and 7. 3 Excluding vehicular CO emissions because they will occur outside 4 the maintenance area is quite different than excluding those 5 emissions because vehicles will not generate them in the first 6 place. Accordingly, there is no credence to plaintiffs’ assertion 7 that the FONSI “should be set aside because it is based on the 8 unsupportable premise that motor vehicles driving to or from the 9 proposed marina will generate no CO emissions.” See Pls.’ Reply 10 (Doc. 162) at 19:26-28 (emphasis added). 11 12 c. Plaintiffs’ Catch-all CO Arguments In arguing that “[t]he Final EA’s carbon monoxide emissions[’] 13 calculations are entirely unreasonable[,] Pls.’ Reply (Doc. 162) at 14 19:12 (emphasis omitted), as previously alluded to, in their 15 replies plaintiffs have resorted to “an approach aptly described by 16 the Tenth Circuit in another context as ‘throw - as - much - mud 17 against - the - wall - as - you - can - and - hope - some - of - it 18 - sticks.’” See Cook v. Rockwell Int’l Corp., 580 F.Supp.2d 1071, 19 1086 (D.Col. 2006) (quoting Dodd Ins. Servs., Inc. v. Royal Ins. 20 Co., 935 F.2d 1152, 1158 (10th Cir. 1991)). 21 rarely, if ever, effective. This approach is Here, the result is undeveloped and 22 ultimately unpersuasive arguments.35 23 First, plaintiffs point to a County e-mail to Reclamation 24 written after MCAQ “staff had reviewed [the] air quality related 25 sections” of the Draft EA. Admin. R., Vol. 2 at 000374. In the 26 27 28 35 Ordinarily the court would not consider these arguments made for the first time in a reply, as earlier mentioned. There is no prejudice to the opposing parties here though. They each had an opportunity to respond in their respective replies filed in connection with their cross-motions for summary judgment. - 95 - 1 “General Comments” section, the County states: “Because a portion 2 of the project area is located within the CO maintenance area, an 3 analysis of CO emissions from watercraft and from visitors’ 4 vehicles should be estimated in the [EA].” Id. Plaintiffs 5 strongly imply that the Final EA disregarded that comment by 6 “[f]ailing to given any consideration to CO emissions generated by 7 motor vehicles driving to and from the proposed marina[.]” Pls.’ 8 Reply (Doc. 161) at 20-21. 9 That generalization distorts the record. The Final EA does 10 “consider” vehicular CO emissions, finding that “none will occur in 11 the maintenance area[.]” Admin. R. at D-18 and 50. Plaintiffs’ 12 disagreement with that finding does not render the decisionmaking 13 process arbitrary and capricious. See Wild Fish Conservancy v. 14 Kempthorne, 613 F.Supp.2d 1209, 1220 (E.D.Wash. 2009) (quoting 15 Greenpeace Action v, Franklin, 14 F.3d 1324, 1336 (9th Cir. 1992) 16 (“The fact that a plaintiff disputes the agency’s findings and 17 conclusions ‘is not a sufficient basis for [the court] to conclude 18 that [the agency’s] action was arbitrary and capricious.’”) “If it 19 were, agencies could only act upon achieving a degree of certainty 20 that is ultimately illusory.” 21 Greenpeace Action, 14 F.3d at 1336. Next, plaintiffs insist that “[a]s long as the federal action 22 will generate CO emissions that may enter a CO maintenance area, 23 those CO emissions must be considered in the EA or EIS.” Pls.’ 24 Reply (Doc. 161) at 4:28-5:2 (citations omitted) (emphasis in 25 original); see also Pls.’ Reply (Doc. 162) at 20:21-22 (citation 26 omitted). Plaintiffs repeat the just quoted sentence twice and 27 then cite to three cases: Sierra Club, 346 F.3d 955; Ober v. 28 Whitman, 243 F.3d 1190 (9th Cir. 2001); and North Carolina v. EPA, - 96 - 1 571 F.3d 1245 (D.C.Cir.), modified, 550 F.3d 1176 (D.C.Cir. 2008). 2 This limited analysis is troublesome where the applicability of the 3 cited cases is questionable. 4 5 ways. The three cited cases are distinguishable in a variety of There is no reason to recount in detail all of those ways. 6 A few of the most glaring distinctions are more than sufficient to 7 make the point. None of those cases involve conformity rule 8 determinations. They also have nothing to do with the sufficiency 9 of an EA or EIS in terms of assessing whether a conformity 10 determination is required pursuant to 40 C.F.R. § 51.853 and 11 93.153. 12 To illustrate, in Sierra Club the Ninth Circuit ordered the 13 EPA to reclassify a southern California county as a serious 14 nonattainment area because the EPA wrongly concluded that that 15 county would have met the PM10 NAAQS but for transborder emissions 16 from Mexico. Sierra Club, 346 F.3d at 962-963. The Court remanded 17 with instructions to reclassify because the evidence from the 18 State’s monitors as to wind patterns and exceedances of PM10 NAAQS 19 did not comport with the State’s position that emissions were 20 coming from Mexico. See id. Particularly without any explanation 21 from plaintiffs, the court declines to speculate as to the 22 purported applicability of Sierra Club, as well as Ober, 243 F.3d 23 1190, and North Carolina, 531 F.3d 896, to the conformity rule 24 determination at issue herein. 25 Citing to Border Power Plant, 260 F.Supp.2d 997, plaintiffs 26 declare that “[a]ir emissions resulting from a proposed action are 27 properly considered ‘direct or indirect effects’ pursuant to 40 28 C.F.R. § 1508.8.” Pls.’ Reply (Doc. 161) at 5:25-27 (emphasis - 97 - 1 added). Plaintiffs offer no analysis at all, and LPMP did not 2 address this assertion in their reply. Without any guidance from 3 the parties, the court infers that plaintiffs’ theory is that the 4 vehicular CO emissions are “direct or indirect effects” as section 5 1508.8 defines them.36 Hence, those emissions should have been 6 included in the Final EA. 7 Plaintiffs have waived this argument because they did not 8 present it during the administrative process. In commenting on the 9 Draft EA with respect to CO, plaintiffs state the general 10 proposition that a conformity determination is required in a CO 11 maintenance area “if direct and indirect emissions equal or exceed 12 100 tpy [tons per year].” 13 § 93.l53). Admin. R. at H-85 (citing 40 C.F.R. Significantly, “direct and indirect emissions” are not 14 synonymous with “direct or indirect effects.” Perhaps the most 15 important distinction, as earlier explained, is that the former has 16 a federal control element, but the latter does not. 17 C.F.R. § 93.152 with 40 C.F.R. § 1508.8. Compare 40 Moreover, plaintiffs’ 18 comments pertained strictly to CO watercraft emissions; they did 19 not mention CO vehicular emissions. See Admin. R. at H-85 20 (“Emissions from increased watercraft use alone could result in 21 direct and indirect emissions that equal or exceed 100 tpy.”) So 22 although plaintiffs informed Reclamation of their opinion that the 23 Final EA should include watercraft CO emissions because they are 24 25 26 27 28 36 “Direct effects” are those “which are caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8(a). Section 1508.8 further defines “indirect effects” as “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.” 40 C.F.R. § 1508.8(b). - 98 - 1 “direct or indirect emissions,” they did not opine that CO 2 vehicular emissions also should be included on the theory that they 3 are “direct or indirect effects.” 4 Plaintiffs’ comments pertaining to the RDEA also are directed 5 only at watercraft CO emissions – not to CO vehicular emissions. 6 See id. at H-174. Plaintiffs’ “Supplemental Comments” do not 7 mention CO emissions at all, regardless of source; they are aimed 8 primarily at estimated PM10 emissions from construction activities. 9 See id. at H-193 - H-194. Thus, because plaintiffs did not inform 10 Reclamation during the NEPA process as to their view that the EA 11 should have included vehicular CO emissions because they are 12 “direct or indirect effects” of the project, Reclamation did not 13 have a chance for meaningful consideration of that issue. 14 Citizen, 541 U.S. at 764, 124 S.Ct. 2204. See Pub. Accordingly, this 15 argument is waived. 16 Even absent a finding of waiver, this argument is not 17 persuasive. As is self-evident from the regulatory definition, 18 whether something is “direct or indirect effect” is a question of 19 causation. See 40 C.F.R. §§ 1508.8(a) and 1508.8(b); see also 20 Border Power Plant, 260 F.Supp.2d at 1016 (“Ninth Circuit precedent 21 makes clear that effects must be causally linked to the proposed 22 federal action to require consideration of those effects in an EA 23 or EIS.”). Here, the plaintiffs made no attempt whatsoever to show 24 that CO vehicular emissions are a “direct or indirect effect” of 25 this marina project. 26 Plaintiffs’ “cumulative impact” argument is no more 27 persuasive. They recite the statutory definition of a “cumulative 28 impact” found in 40 C.F.R. § 1508.7. - 99 - Then again, simply citing to 1 Border Power Plant, 260 F.Supp.2d 997, plaintiffs declare that 2 “[a]ir emissions from a proposed action are properly considered 3 ‘cumulative impacts’ requiring NEPA analysis.” 4 161) at 6:11-12 (citation omitted). Pls.’ Reply (Doc. Although this assertion is 5 made in plaintiffs’ reply to LPMP, LPMP’s reply does not address 6 cumulative impacts. 7 Plaintiffs’ perfunctory argument and LPMP’s lack of response 8 leaves the court to speculate on both sides of the equation. The 9 court declines to do so because, as it has previously remarked, “to 10 do so would mean that it would be impermissibly taking on the role 11 of advocate, rather than impartial decision-maker.” See Mann v. 12 GTCR Golder Raunder, L.L.C., 483 F.Supp.2d 884, 891 (D.Ariz. 2007). 13 Consequently, the court finds unpersuasive plaintiffs’ cumulative 14 impact argument. 15 In a last-ditch attempt to prevail on their argument that 16 the Final EA did not properly calculate vehicular CO emissions, 17 plaintiffs contend that “[b]ecause attracting paying customers is 18 an admitted purpose of the proposed marina, the CO emissions those 19 customers will generate should have been considered in the Final 20 EA.” Pls.’ Reply (Doc. 161) at 6:21-23 (citations omitted). At 21 the risk of repetition, plaintiffs merely cite to two cases and 22 provide no analysis. 23 In the cited portion of Florida Wildlife Federation v. U.S. 24 Army Corps of Engineers, 401 F.Supp.2d 1298 (S.D.Fla. 2005), in 25 addressing the sufficiency of the EA as to the Corps’ “benefits 26 analysis” under the Clean Water Act (“CWA”),37 the Court held that 27 37 28 “Under the CWA, the Corps must balance ‘benefits which reasonably may be expected to accrue from the proposal’ against the proposal’s ‘reasonably foreseeable detriments’” Florida Wildlife Federation, 401 F.Supp.2d at 1332 n. - 100 - 1 that analysis “exceeded the scope of the impacts analysis as 2 required by” the Corps’ “own regulations and by regulations under 3 [CWA].” Id. at 1332 (footnote omitted). Plainly neither the CWA 4 and its regulations, nor regulations governing the Army Corps of 5 Engineers are applicable here. Regardless of those obvious factual 6 distinctions, as a district court decision outside this Circuit, 7 Florida Wildlife would have little if any precedential value here. 8 Western Land Exch. Project v. U.S. Bureau of Land Management, 9 315 F.Supp.2d 1068 (D.Nev. 2004), the other case to which 10 plaintiffs cite, likewise does not support their broad assertion 11 that because “attracting paying customers is an admitted purpose of 12 the [project],” the Final EA “should have considered. . . the CO 13 emissions those customers will generate[.]” Pls.’ Reply (Doc. 161) 14 at 6:22-23 (citations omitted). Plaintiffs quote from that portion 15 of Western Land wherein the court held that the agency did not 16 comply with 40 C.F.R. § 1508.8 because it did not adequately 17 consider the “direct and indirect effects” of the sale of land to 18 private developers. So presumably, this is just another variation 19 on plaintiffs’ argument that the Final EA improperly excluded 20 indirect and direct effects. Plaintiffs have waived any argument 21 that the Final EA should have included vehicular CO emissions 22 because they are “direct or indirect effects” of the marina 23 project, as already explained. Further, plaintiffs have not 24 attempted to establish the requisite causal connection. 25 So despite the slight shift in focus See id. - paying customers as a 26 purpose of the project – this argument is untenable nonetheless. 27 There is one final aspect of plaintiffs’ arguments as to CO 28 34. - 101 - 1 emissions which the court cannot overlook. There are three other 2 potential sources of CO emissions, as mentioned earlier, that the 3 Final EA did not include. Those are emissions emanating from: (1) 4 equipment used to transport boats from dry storage; (2) “vehicles 5 idling in line at boat ramps[;]” and (3) vehicles driving in the 6 proposed marina’s unpaved parking lots.” 7 150) at 22:13-14 (citation omitted). Pls.’ Mot. Summ. J. (Doc. Plaintiffs argue that the CO 8 emissions from these three sources are “indirect emissions” as 40 9 C.F.R. § 93.152 defines them, and thus should have been 10 “considered” in the Final EA. 11 See id. at 22:15. Reclamation did not respond to this argument, but LPMP did. 12 Again stressing that the applicable NEPA regulations pertain, inter 13 alia, to “indirect emissions . . . in a . . . maintenance area[,]” 14 LPMP asserts that because all emissions from the transport 15 equipment would occur “outside the CO maintenance areas[,]” 16 Reclamation did not have to consider those emissions in the Final 17 EA. LPMP’s Cross-mot. (Doc. 157) at 18:23-24 (citation omitted). 18 Plaintiffs’ reply to LPMP’s cross-motion discusses vehicular CO 19 emissions at some length. It makes no mention, though, of the 20 other potential sources of CO emissions listed above. The court 21 construes that silence to mean that plaintiffs are abandoning their 22 argument that those sources are “indirect emissions.” 23 Assuming to the contrary, i.e., no abandonment, still, this 24 argument is groundless. The phrase “indirect emissions,” as 25 previously discussed, is a regulatory term of art. For an emission 26 to be “indirect” within the meaning of section 93.152, it must have 27 several components, including “reasonabl[e] foreseeab[ility][,]” 28 and an element of control by the Federal agency. - 102 - See id.. 1 Plaintiffs have not shown that any potential CO emissions from 2 transport equipment, idling vehicles or driving on unpaved parking 3 lots, have any of the attributes of an “indirect emission” in 4 accordance with 40 C.F.R. § 93.152. 5 6 4. Diesel Engines Having addressed all of plaintiffs’ contentions with respect 7 to how the Final EA calculated PM10, ozone and CO emissions, 8 plaintiffs are left with their dispute as to how the Final EA dealt 9 with diesel engines. Undisputably, in providing emissions 10 “estimates” to MCAQ, LPMP “did not include any diesel engines since 11 [it] w[ould] not [be] sell[ing] diesel fuel at [its] facility.” 12 Admin. R. at D-4. Plaintiffs fault Reclamation for “accepting 13 LPMP’s non sequitur that the Final EA could ignore diesel engines 14 in its emissions calculations because the proposed marina will not 15 sell diesel fuel.” Pls.’ Mot. Summ. J. (Doc. 150) at 21:9-13 16 (footnote omitted) (emphasis added). Plaintiffs do not expand upon 17 this argument at all in their motion. 18 Even though LPMP did not include diesel engines in its 19 estimates for calculating watercraft emissions, Reclamation did. 20 After receiving LPMP’s estimates, Reclamation revised its emissions 21 calculations in several ways. Although the estimate for sailboats 22 at the existing marina was 110, ultimately Reclamation ran the 23 NONROAD2005 model using 138 sailboats with diesel engines. 24 Admin. R. at D-2 and D-8. See Also, because EPA had “caution[ed] that 25 when modifying population numbers in the NONROAD2005 model, 26 activity levels should also be examined to reflect local data[,]” 27 Reclamation adjusted “auxiliary diesel sailboat engines[’] activity 28 levels to reflect local conditions.” Id. at D-9. - 103 - So even though 1 the proposed marina would not be selling diesel fuel, contrary to 2 what plaintiffs assert, Reclamation’s watercraft emissions 3 calculations did include diesel engines. 4 As an afterthought, in their reply to LPMP’s cross-motion, 5 plaintiffs mention that “[t]he final EA . . . assumes that no 6 motorboats at the proposed marina will have diesel engines[]” 7 assumption they label “absurd[.]” 8 11 (emphasis omitted). 9 their reply. - an Pls.’ Reply (Doc. 161) at 14:10- LPMP did not respond to this argument in Regardless, plaintiffs once again are choosing to 10 ignore the broader context in which the watercraft emissions 11 calculations were made. 12 Looking at the Final EA as a whole, including Appendix D, it 13 cannot be said that Reclamation acted arbitrarily, capriciously, or 14 committed a clear error of judgment in its consideration of diesel 15 engine emissions. Overall, Reclamation’s approach to watercraft 16 emissions was relatively conservative. Starting from the 17 assumption of 100 percent occupancy, Reclamation “redistributed” 18 LPMP’s counts with respect to 100-175 horsepower engines and 17519 300 horsepower engines. Admin. R. at D-2. Rather than a fifty- 20 fifty distribution, Reclamation opted to “favor the higher-power 21 motors[.]” Id. Reclamation also added 70 jet skis or personal 22 watercraft into the model,38 which LPMP did not identify in its 23 inventory. Id. Consequently, despite plaintiffs’ assertion to 24 the contrary, the Final EA does not completely ignore diesel 25 engines. Moreover, its overall approach to watercraft emissions 26 27 28 38 Reclamation later discovered that that number should have been 88. Admin. R. at D-3 n.1. But rather than running the model again, as MCAQ suggested, Reclamation used MCAQ data “to recalculate the emissions for th[o]se additional 18 personal watercraft.” Id. - 104 - 1 was, as just noted, relatively conservative. 2 Summarizing the various rulings herein as to Count Three, 3 plaintiffs simply have not met their burden of “demonstrat[ing] 4 that [Reclamation’s] ultimate conclusions” as to the PM10, ozone and 5 CO emission calculations for the proposed marina were 6 “unreasonable.” See George, 577 F.3d at 1001 (citation and 7 internal quotation marks omitted). Somewhat ironically, plaintiffs 8 claim that the Final EA impermissibly takes a “myopic view of the 9 proposed marina by failing to consider all of the ozone, PM10 and CO 10 emissions it will produce.” 11 23:6-7. Pls.’ Mot. Summ. J. (Doc. 150) at On the contrary, it is plaintiffs who selectively and 12 narrowly read that document so as to see NEPA violations at nearly 13 every turn of that document’s emissions analysis. Taking into 14 account as it must, however, “the reasonableness of [Reclamation’s] 15 decision-making processes[]” with respect to PM10, ozone and CO 16 emissions associated with the proposed marina, the court finds that 17 Reclamation did not act arbitrarily, capriciously, abuse its 18 discretion, or otherwise act not in accordance with law. See 19 MacClarence, 596 F.3d at 1129 (citation and internal quotation 20 marks omitted). Accordingly, the court denies plaintiffs’ motion 21 for summary judgment as to Count Three, and grants the cross22 motions for summary judgment as to that Count by Reclamation and 23 LPMP. 24 IV. Public Notice and Comment 25 The fourth and final count of the FAC alleges that, in 26 violation of NEPA, Reclamation did not “provide meaningful 27 opportunity for public comment” prior to issuing the FONSI and 28 Final EA. FAC (Doc. 4) at 25 (emphasis omitted). - 105 - The thrust of 1 plaintiffs’ argument on summary judgment is that Reclamation did 2 not comply with NEPA because it “wait[ed] until after the [close of 3 the] public comment period . . . before substituting a new 4 methodology for calculating air emissions in place of the one that 5 was disclosed in the Draft EA and the Revised Draft EA[.]” Pls.’ 6 Mot. Summ. J. (Doc. 150) at 24:26-25:1 (citation omitted). By 7 waiting until issuance of the Final EA to “replace” that 8 methodology, plaintiffs contend that they, and the public at large, 9 were deprived “of an opportunity to scrutinize and comment” on that 10 “new” methodology. 11 Id. at 25:6-7 (citation omitted). LPMP, but not Reclamation, counters that Reclamation had no 12 obligation in the first instance to disclose its updated 13 methodology for calculating its air quality conformity 14 determination “because the de minimis levels were not exceeded.” 15 LPMP’s Cross-mot. (Doc. 157) at 21:4-5 (citations omitted). The 16 court will address this argument at the outset because if LPMP 17 prevails, LPMP’s and Reclamation’s arguments on substantive grounds 18 become moot. 19 The source of LPMP’s argument is a document dated July 20 13, 1994,39 entitled “General Conformity Guidance: Questions 21 and Answers[,]” and issued by the U.S. Environmental Protection 22 Agency’s (“EPA”) Office of Air Quality Planning and Standards 23 (“General Conformity Guidance”), available at 24 25 26 27 28 39 Since then, in light of 1995 CAA amendments, that Guidance Document has been revised, but not with respect to “Q&A #1,” which is the basis for LPMP’s argument at this juncture. See William T. Harnett, Memorandum, Revision to General Conformity Applicability Questions and Answers, http://www.epa.gov/air/genconform/documents/Jun06/Rev_to_GC_App_QandAs.pdf (last visited June 8, 2010); see also New General Conformity Q’s & A’s (October 19, 1994), http;//www.epa.gov/air/genconform/documents/gcgqa_941019.pdf (last visited June 9, 2010). - 106 - 1 http://epa.gov/ttn/oarpg/conform/gcgqa_71394.pdf. In particular, 2 LPMP relies upon the following question and partial answer: 3 1. 4 A: If the proposed action was found to result in emissions below de minimis levels or if a conformity determination is not required, then it is not obligatory to make the applicability analysis public under this rule. . . . In any case, the public is free to request and the Federal agency is obligated to provide the applicability analysis under the Freedom of Information Act. 5 6 7 Must the applicability analysis be made public? 8 9 LPMP’s Cross-mot. (Doc. 157) at 20:24-27 (quoting General 10 Conformity Guidance at 26) (emphasis added by LPMP). LPMP omitted 11 the last sentence of that answer, however, as plaintiffs note. 12 That sentence expressly provides: 13 14 NEPA’s disclosure requirements may also require publication of the information supporting the applicability analysis even if the conformity rule does not. 15 16 General Conformity Guidance at 26 (emphasis added). This is a 17 crucial omission because the just quoted sentence clearly manifests 18 EPA’s recognition that NEPA may impose more stringent public 19 disclosure requirements than EPA’s guidance document. LPMP also 20 fails to take into account the nature of this guidance document, as 21 plaintiffs further note. The purpose of that document is to 22 “represent[] EPA’s interpretation of the general conformity rule.” 23 Id. This EPA-drafted interpretive guidance document was not in any 24 way intended to supplant Reclamation’s obligation to comply with 25 NEPA’s public participation procedures, which “are at the heart of 26 the NEPA review process.” 27 770 (9th Cir. 1982). See California v. Block, 690 F.2d 753, There is simply no credence to LPMP’s argument 28 that a selective quote from a 1994 EPA-prepared interpretive - 107 - 1 guidance document, obviates NEPA’s public comment procedures. 2 Having found that the 1994 guidance document did not relieve 3 Reclamation from complying with NEPA’s public comment procedures, 4 the next issue is whether Reclamation fulfilled that obligation. 5 Because they serve differing purposes, “NEPA does not require 6 federal agencies to assess . . . consider [and] respond to public 7 comments on an EA to the same degree as it does for an EIS[.]” 8 California Trout v. F.E.R.C., 572 F.3d 1003, 1016 (9th Cir. 2009) 9 (citing 40 C.F.R. § 1503.4). For example, NEPA regulations require 10 circulation of a draft EIS, but those regulations are silent as to 11 the “necessity of a draft EA[,]” and in fact do “not expressly 12 require the circulation of a draft EA.” See Bering Strait Citizens 13 for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d 14 938, 952 (9th Cir. 2008). Nonetheless, even when it issues an 15 EA,“an agency must permit some public participation[.]” Id. The 16 pertinent NEPA regulations provide that an “agency must ‘involve 17 environmental agencies, applicants, and the public, to the extent 18 practicable, [40 C.F.R.] § 1501.4(b), and ‘[m]ake diligent efforts 19 to involve the public in preparing and implementing their NEPA 20 procedures,’ [40 C.F.R.] § 1506.6(a).” California Trout, 572 F.3d 21 at 1016. 22 The Ninth Circuit has not “unequivocally defined what sort of 23 public participation is required to meet NEPA’s amorphous 24 standards[.]” Id. at 1017. It “has recognized that the level of 25 participation required by NEPA’s implementing regulations is not 26 substantial[,]” however. Id. at 1017 (emphasis added). Not 27 surprisingly, “a complete failure to involve or even inform the 28 public about an agency’s preparation of an EA would violate NEPA’s - 108 - 1 regulations[.]” 2 omitted). Id. (citation and internal quotation marks Yet, the Ninth Circuit has “also concluded that ‘the 3 circulation of a draft EA is not required in every case.’” Id. 4 (quoting Bering Strait Citizens, 524 F.3d at 952). 5 The Bering Strait Court confronted the issue of “what level of 6 public disclosure” NEPA “require[s] . . . before issuance of a 7 final EA[.]” Bering Strait, 524 F.3d at 953. Recognizing that 8 “[e]ach EA will be prepared under different circumstances[;] . . . 9 the regulations [do] not specif[y] a formal practice for affected 10 agencies[;]” and “practices have not been uniform,” the Ninth 11 Circuit “elaborate[d] the factors that should guide the agency.” 12 Id. Borrowing heavily from Sierra Nevada Forest Protection 13 Campaign v. Weingardt, 376 F.Supp.2d 984 (E.D.Cal. 2005), the Ninth 14 Circuit concurred that the pertinent NEPA regulations: 15 16 17 18 “‘require that the public be given as much environmental information as is practicable, prior to completion of the EA, so that the public has a sufficient basis to address those subject areas that the agency must consider in preparing the EA. Depending on the circumstances, the agency could provide adequate information through public meetings or by a reasonably thorough scoping notice.’” 19 20 Bering Strait, 524 F.3d at 953 (quoting Weingardt, 376 F.Supp.2d at 21 991). 22 Focusing on the sufficiency of the environmental information, 23 and “commend[ing]” the approach in Weingardt, the Ninth Circuit in 24 Bering Strait adopted the following rule: 25 26 27 An agency, when preparing an EA, must provide the public with sufficient environmental information, considering the totality of the circumstances, to permit members of the public to weigh in with their views and thus inform the agency decision-making process. 28 Id. (emphasis added). The Bering Strait Court found that the - 109 - 1 “quality of the [agency’s] dissemination of environmental 2 information to the public and its consideration of public comment, 3 before issuing its EA, was reasonable and adequate[,]” 4 notwithstanding that the agency did not circulate a Draft EA at all 5 before issuing the Final EA. 6 See id. The Ninth Circuit based that holding on several factors. 7 “Information about the project was widely disseminated throughout 8 the community and environmental information was reasonably and 9 thoroughly tendered to the public.” Id. Dissemination occurred by 10 the agency’s posting on its website of a notice of a public 11 meeting, and description of the proposed project. See id. at 944. 12 Distribution of the notice in electronic or hard-copy format was 13 made to a vast cross-section of potentially interested 14 stakeholders, such as federal, state and local agencies, 15 neighboring communities and adjacent property owners, as well as 16 “any member of the community who requested a copy.” Id. 17 Additionally, the agency “received a high level of public comment 18 from the . . . community, most of it favoring the project.” 19 953. Id. at The Court also found significant the agency’s public outreach 20 efforts through various media outlets, along with the agency’s 21 “joint efforts with state agencies to explain the permitting 22 process.” Id. For all of these reasons, in Bering Strait, the 23 Ninth Circuit held that “[t]he quality of the Corp’s dissemination 24 of environmental information to the public and its consideration of 25 public comment, before issuing its EA, was reasonable and 26 adequate.” 27 Id. Based upon Weingardt, plaintiffs argue that Reclamation 28 violated NEPA because it “did not offer significant pre-decisional - 110 - 1 opportunities for informed public involvement in the environmental 2 review process.” See Weingardt, 376 F.Supp.2d at 992. Reclamation 3 vigorously maintains that it did offer such opportunities. 4 Reclamation emphasizes that it prepared not one, but two Draft EAs 5 and submitted both for public comment. Moreover, based upon those 6 public comments Reclamation “revised its analysis of certain issues 7 related to the environmental impacts” of the proposed marina and 8 “included all comments and responses to comments in the Final EA.” 9 BOR’s Cross-mot. (Doc. 154) at 25:10-12. LPMP echoes this 10 response, adding that Reclamation distributed a scoping memorandum 11 “to about 70 interested agencies[,] organizations and individuals, 12 which initiated a 23-day public scoping period.” 13 (Doc. 157) at 22:14-15 (citation omitted). LPMP’s Cross-mot. LPMP thus contends that 14 “BOR provided sufficient information to foster informed public 15 participation.” 16 Id. “Determining whether the public was adequately involved [for 17 NEPA purposes] is a fact-intensive inquiry made on a case-by-case 18 basis.” Natural Resources Defense Council 634 F.Supp.2d at 1067 19 (citation and internal quotation marks omitted). Engaging in that 20 fact-intensive inquiry here shows, as detailed below, that 21 “considering the totality of the circumstances,” prior to issuing 22 the Final EA, Reclamation “provide[d] the public with sufficient 23 environmental information, . . . to permit members of the public to 24 weigh in with their views and thus inform the agency decision-making 25 process.” See Bering Strait, 524 F.3d at 953. NEPA, as the Ninth 26 Circuit interprets its implementing regulations, requires nothing 27 more. 28 In arguing that Reclamation did not comply with NEPA’s public - 111 - 1 notice and comment provisions, plaintiffs partially quote from the 2 EA as follows: 3 [BOR] chose to replace the methodology used for calculating potential watercraft-related emissions from the proposed project described in the Draft EA and the Revised Draft EA. 4 5 6 Pls.’ Mot. (Doc. 150) at 150 (citation omitted). Rather than 7 viewing that statement in the framework of the entire EA process, 8 plaintiffs are reading it in isolation. As will soon become 9 evident, regardless of whether the focus is on the EA process 10 generally or the more narrow issue of air quality emissions 11 methodology, Reclamation complied with NEPA’s public participation 12 requirements for an EA. 13 On March 1, 2006, Reclamation sent out a scoping memorandum “to 14 about 70 interested agencies, organizations and individuals, 15 requesting input regarding any issues or concerns that should be 16 addressed in the EA[.]” Admin. R. at 5 (citation omitted). During 17 that 23-day public scoping period, Reclamation received five scoping 18 comment letters, including one from plaintiffs. 19 id. at H-61. Id. at 5; see also The “relevant issues and concerns identified during 20 scoping[,]” and “addressed in the [Final] EA include[d] . . . air 21 quality[.]” Id. at 5. 22 On July 28, 2006, Reclamation instituted “a 21-day public 23 review and comment period[]” regarding “[a]n initial draft [EA] for 24 the proposed” marina project. Id. at Preface. As part of that 25 initial review process two articles were published in The Arizona 26 Republic. Id. at 2. The first article advised the public about how 27 to obtain a copy of that Draft EA. See id. In total, Reclamation 28 received 65 comments during that first comment period, including 21 - 112 - 1 public comment letters. Id.; and at H-1. Of the 53 “short e-mail 2 statements[,]” the vast majority supported the project. 3 Id. Plaintiffs submitted a comprehensive public comment letter 4 during that first review period. See id. at H-61- H-91. That 5 letter included a detailed review of the “air quality impacts” that 6 plaintiffs claimed had “not been adequately addressed” in the Draft 7 EA. Id. at H-82 - H-86 (emphasis omitted). Reclamation responded 8 in writing, as it did to all public comment letters. All comment 9 letters, along with Reclamation’s responses thereto regarding both 10 the Draft EA and the Revised Draft EA (“RDEA”), are appended to the 11 Final EA. 12 See id., App. H. On October 24, 2006, Reclamation issued a RDEA allowing for a 13 second public comment and review period; this one was for 24 days. 14 Id. (FONSI) at 2. Reclamation issued that RDEA “[d]ue to the 15 discrepancy between the estimated current watercraft use identified 16 in the [initial] draft EA, and the estimated current watercraft use 17 based upon corrected data[.]” Id. The Draft EA also was “revised 18 where appropriate in response to comments that had been received 19 during the initial public review and comment period.” Id. 20 During this second comment period, Reclamation received nine 21 comment letters, including another one from plaintiffs. 22 and H-162 - H-181. Id. at H-2; Plaintiffs, among other things, challenged the 23 methodology used in the RDEA for calculating air quality emissions. 24 See id. at H-174 - H-176. The thrust of plaintiffs’ comments was to 25 fault Reclamation for “rel[ying] on outdated data[,]” such as 2002 26 PM10 emission assumptions. Id. at H-176. As to “ozone precursor 27 emissions from watercraft[,]” according to plaintiffs, “[a] better 28 approach” would be to “estimate” those emissions by “us[ing] the - 113 - 1 most current county-wide emission estimate available as a starting 2 point.” 3 Id. at H-175. The FONSI acknowledges that one unidentified commentator, 4 presumably plaintiffs, “indicated [BOR’S] methodology for 5 calculating air emissions that would result from the proposed 6 project was flawed.” Id. at 8 (footnote added). Consequently, as 7 the FONSI further explains: 8 9 10 11 Reclamation sought guidance from . . . MCAQD . . . to determine a more suitable approach for calculating potential emissions. As a result, Reclamation revised its methodology to be consistent with that used by MCAQD in compiling the County’s own emission inventory reports. Appendix D to the final EA provides a detailed explanation of the revised methodology, as well as the recalculated emissions. 12 13 Id. (emphasis added). Reclamation’s written response to 14 plaintiffs’ comment letter sets forth the efforts Reclamation 15 undertook, primarily in conjunction with MCAQD, to address 16 plaintiffs’ “concerns” regarding Reclamation’s methodology for 17 “estimat[ing] potential air pollutant emissions that could be 18 generated by th[e] proposed project.” Id. at H-185. In that 19 response, Reclamation advised plaintiffs that “the emission 20 calculations for most of the nonroad sources, including pleasure 21 craft, were derived from use of U.S. [EPA’s] NONROAD2002 model.” 22 Id. (emphasis added). As Reclamation further explained, however, 23 that “model has since been superceded by the NONROAD2005 model.” 24 Id. (emphasis added). 25 Reclamation’s response also includes a fairly expansive 26 discussion of an EPA “technical report on the methodology and data 27 it uses in its NONROAD model, to allocate nonroad mobile equipment 28 populations from the national to State and county levels (EPA - 114 - 1 2005).” See id. In further explaining its rationale for 2 “choos[ing] to utilize EPA’s NONROAD2005 model[]” in the RDEA, 3 Reclamation explained that “MCAQD staff [had] reiterated EPA’s 4 recommendation that default NONROAD model values be adjusted where 5 local data are available, and stress that local data are preferred 6 whenever they are available.” 7 Id. at H-186. On February 12, 2007, about a week and a half before 8 Reclamation issued the FONSI and Final EA, plaintiffs submitted 9 “supplemental comments[,]” again pertaining to the RDEA. 10 193. Id. at H- The purpose of those comments was to make Reclamation aware of 11 the MCAQD’s then-recent release of its “2005 Emissions Inventory[,]” 12 and to seek a review by Reclamation of that inventory. Id. As 13 part of that review, plaintiffs stated their “belie[f]” that 14 Reclamation should “update its emissions estimates for the proposed 15 marina, prior to determining whether [that] . . . marina would have 16 a ‘significant impact’ on the environment.” Id. Plaintiffs then 17 contrasted three assumptions in the 2005 Emissions Inventory with 18 those in the RDEA, concluding, inter alia, that “the total project 19 emissions clearly exceed the conformity threshold of 70 tons.” Id. 20 at H-194. 21 Directly responding to those supplemental comments, Reclamation 22 explained its contrary view. Reclamation opined, inter alia, that 23 plaintiffs “either misunderstood or misinterpreted information 24 presented in the public review draft” of the County’s 2005 Emissions 25 PM10 Inventory. Id. at H-197. Next, Reclamation clarified the 26 various sources used in calculating emissions factors, focusing 27 specifically on PM10. See id. 28 Reclamation further explained: Appendix D [Assumptions and Calculations Uses for General Conformity Rule Determinations] has - 115 - 1 been revised to more clearly identify the sources of each emission factor that were used. 2 Id. 3 Moreover, even before plaintiffs submitted their supplemental 4 comments, on February 7, 2007, Reclamation sent plaintiffs’ then5 counsel a letter. In that letter Reclamation offered what it 6 “hope[d]” was a “concise and easy to understand description of the 7 future steps [Reclamation] would like to take as it continues its EA 8 comment response on th[e] issue[]” of air quality emissions 9 methodology. Admin. R., Vol. 2 at 000450. Reclamation repeated 10 that “the basic idea is to gather local data that would serve as a 11 more accurate input into the EPA emissions modeler.” Id. 12 Reclamation then explained: 13 [c]urrently, the estimates are based on the default EPA engine data that is gathered nationally by EPA. While the defaults are certainly usable, local data is preferred if available. 14 15 16 Id. Specifically “respon[ding] to [plaintiffs’] comments 17 questioning some of the underlying methodology assumptions,” 18 Reclamation wrote that it was “open to gathering better local data.” 19 Id. Evincing a willingness to coordinate and cooperate with 20 plaintiffs, Reclamation proposed a “walking survey at [plaintiffs’] 21 Marina” as “the simplest way to get some good data.” Id. That 22 February, 2007 letter included the following attachments: (1) a 23 “Lake Pleasant Air Emissions Estimate,” addressing the “Proposed 24 Methodology Change[;]” (2) a list of various engine types; and (3) 25 an EPA “User’s Guide for the Final NONROAD2005 Model[.]” Admin. 26 Rec., Vol. 2 at 000451-000471. 27 As can be seen, Reclamation sought and received active 28 engagement in the EA process from the March 1, 2006 issuance of the - 116 - 1 scoping memorandum to a wide cross-section of the community, through 2 the issuance of the FONSI and Final EA nearly a year later, on 3 February 23, 2007. Through a newspaper article the public was 4 advised of the issuance of a Draft EA, and how to obtain a copy of 5 that document. Admin. R. (FONSI) at 2. Further, “[t]he public was 6 afforded not one, but two distinct comment periods in this case.” 7 Natural Resources Defense Council, 634 F.Supp.2d at 1067. 8 Plaintiffs took full advantage of both comment periods, each time 9 submitting quite extensive comment letters. 10 H-91; and at H-162 - H-181. Both times Reclamation reciprocated 11 with similarly detailed written responses. 12 and at H-183 - H-190. See Admin. R. at H-61 - See id. at H-95 - H-110; Other members of the public also engaged in 13 this process by providing their own written comments. See id. 14 (FONSI) at 2; and at H-1 - H-2 (list of those who submitted comment 15 letters to the July 2006 Draft EA). 16 As to the air quality emissions methodology in particular, 17 again, at each step in the EA process Reclamation took into account 18 plaintiffs’ comments, among others. Denouncing Reclamation for 19 “junk[ing] the air emissions calculations disclosed in the [Draft EA 20 and RDEA] and proceed[ing] behind closed doors with an entirely new 21 methodology for calculating [air quality] emissions[,]” plaintiffs 22 accuse Reclamation of engaging in improper “‘bait and switch’ 23 tactics[,]” as to those calculations. 24 23:25-28 (emphasis added). Pls.’ Reply (Doc. 162) at This is nothing more than inflammatory 25 rhetoric unsupported by the administrative record. 26 Reclamation’s decision to use an updated nonroad model for 27 assessing air quality emissions was not “bait and switch,” but 28 rather a result of the fact that the NONROAD2002 model was - 117 - 1 “superceded by the NONROAD2005 model.” Admin. R. at H-185. 2 Moreover, the EA process, including formulation of the air quality 3 emissions methodology was, as the record reflects, not “behind 4 closed doors.” Furthermore, the court cannot ignore the fact that 5 “plaintiffs have not identified any additional relevant information 6 that they would have provided to the [BOR] had there been another 7 round of public review.” See Natural Resources Defense Council, 634 8 F.Supp.2d at 1068 (citations omitted). 9 Notwithstanding Reclamation’s public involvement efforts 10 outlined above, plaintiffs assert that Weingardt governs the present 11 case. There, the court held that the agency did not “give the 12 public an adequate pre-decisional opportunity to informed comment[]” 13 where that agency issued an initial scoping notice for comment, but 14 did not allow comment on the Final EA, prior to releasing the FONSI. 15 Weingardt, 376 F.Supp.2d at 992. In sharp contrast to the present 16 case, however, the circulated pre-decisional documents in Weingardt 17 “contained no analysis of the environmental impacts of the 18 projects[.]” Id. (emphasis added). 19 Obviously, the same is not true here. The “pre-decisional 20 documents,” such as the Draft EA, did include such analyses. 21 Moreover, in between the issuance of the Draft EA and the Final EA, 22 plaintiffs in particular were involved in an active exchange with 23 Reclamation regarding, inter alia, the methodology to be used for 24 calculating air quality emissions. Finally, although not entirely 25 dispositive, it is noteworthy that in Weingardt the court “chastised 26 the [agency] for withholding ‘already-prepared environmental 27 documents even though the documents were completed before the end of 28 the public comment period.’” Natural Resources Defense Council, 634 - 118 - 1 F.Supp.2d at 1067 (quoting Weingardt, 376 F.Supp.2d at 992). The 2 Weingardt court expressly found that that “failure to provide 3 essential information, already in the hands of the agency, d[id] not 4 comply with the agency’s requirement of involving the public ‘to the 5 extent practicable.’” Weingardt, 376 F.Supp.2d at 993 (quoting 40 6 C.F.R. § 1501.4). 7 Here, Reclamation did not withhold any documents. Not only 8 that, also in sharp contrast to Weingardt, Reclamation did involve 9 the public “to the extent practicable.” Reclamation circulated not 10 one, but two separate EA drafts prior to issuing the Final EA. 11 Plaintiffs commented on the air emissions methodology at least three 12 times, and each time Reclamation responded. As in California Trout, 13 plaintiffs “were given a full opportunity to review and comment on 14 the draft EA[s], as NEPA requires, and they took advantage of 15 th[ose] opportunit[ies].” California Trout, 572 F.3d at 1017. 16 Plaintiffs were not the only members of the public participating in 17 this process, as the comment letters in the record show. The court 18 declines to broaden the scope of NEPA’s public participation 19 requirements under these circumstances. Reclamation did not run 20 afoul of NEPA by not preparing and circulating another RDEA with the 21 substituted methodology. Having found that Reclamation adequately 22 involved the public in the EA process, the court grants the cross23 motions for summary judgment by Reclamation and LPMP and denies 24 plaintiffs’ summary judgment motion as to Count Four. 25 V. 26 Remedies Based upon the court’s holdings herein, granting summary 27 judgment in favor of Reclamation and LPMP as to all remaining counts 28 of the FAC, that is, Counts Two, Three and Four, the arguments as to - 119 - 1 remedies are moot. The court’s summary judgment rulings also render 2 moot plaintiffs’ motion to strike the Pretasky affidavit and Ninth 3 Circuit transcript because, as explained at the outset, those 4 exhibits pertain strictly to the issue of a whether to grant a 5 permanent injunction here. Accordingly, the court denies that 6 motion to strike (Doc. 169). Likewise, the court’s summary judgment 7 rulings herein, also render moot all issues pertaining to remedies. 8 9 Conclusion Three fundamental legal tenets have guided this court’s 10 searching review of the administrative record, and its consideration 11 of the parties’ arguments. First, throughout, the court has been 12 mindful of its limited role and the deferential nature of its 13 review. “The NEPA process involves an almost endless series of 14 judgment calls[,]” as the D.C. Circuit Court of Appeals has so 15 astutely pointed out. Coalition on Sensible Transportation, Inc. v. 16 Dole, 826 F.2d 60, 66 (D.C.Cir. 1987). “The line-drawing decisions 17 necessitated by this fact of life are vested in the agencies, not 18 the courts.” Id. Plaintiffs’ displeasure with where Reclamation 19 has drawn the lines during this protracted NEPA process is not a 20 basis for this court to overturn the Final EA and FONSI. 21 The second tenet guiding the court is that NEPA imposes only 22 procedural requirements; it does not mandate any particular 23 substantive outcome. See Tidwell, 599 F.3d at 936. From their 24 March 24, 2006, detailed and extensive written response to the 25 Notice of Public Scoping, prepared by their counsel at the time, 26 plaintiffs were actively involved in the NEPA process at every step 27 of the way. See Admin. R., Vol. 2 at 000298 - 000316. Thereafter, 28 as outlined in discussing Count Four, through their counsel, - 120 - 1 plaintiffs availed themselves of every public comment period, 2 including “supplemental comments” roughly a week and a half before 3 issuance of the FONSI and Final EA. 4 H-181; H-191; and H-193 - H-194. See id. at H-61 - H-91; H-163 - Plaintiffs appear to be much like 5 those in Spiller v. White, 352 F.3d 235 (5th Cir. 2003), about which 6 the Court opined, “They really don’t want more process. . . . What 7 they really desire is a [different] substantive result[.]” See id. 8 at 245. 9 The third and equally determinative tenet is that as the party 10 challenging Reclamation’s actions as arbitrary and capricious, at 11 all times, the burden of proof was on plaintiffs. 12 F.3d at 1011. See George, 577 Plaintiffs did not meet that burden, however. 13 Instead, plaintiffs engaged in a process which the Ninth Circuit has 14 described in a slightly different context as “cherry pick[ing] 15 information and data out of the administrative record to support 16 their position[.]” See Native Ecosystems, 428 F. at 1240. In Native 17 Ecosystems, the Ninth Circuit found that method did not support a 18 finding that the project at issue was “highly controversial or 19 highly uncertain[]” within the meaning of NEPA regulations. 20 The same is true here. Id. Cherry picking data and information from the 21 vast administrative record does not satisfy plaintiffs’ burden of 22 showing that Reclamation’s actions were “arbitrary, capricious, an 23 abuse of discretion, or otherwise not in accordance with law.” See 24 Alaska Dep’t of Envtl. Conservation, 540 U.S. at 496, 124 S.Ct. 938. 25 In sum, because the court is satisfied that Reclamation took the 26 necessary “hard look” at the environmental consequences of the 27 proposed marina, its “review is at an end.” See National Parks & 28 Conservation Ass’n v. BLM, 606 F.3d 1058, 1073 (9th Cir. 2010) - 121 - 1 (citation and internal quotation marks omitted). 2 For the reasons set forth herein, the court hereby ORDERS that: 3 (1) “Federal Defendants’ Motion to Strike Exhibit One from 4 Plaintiffs’ Motion for Summary Judgment” (Doc. 152) is GRANTED; 5 (2) “Plaintiffs’ Motion to Strike Exhibit A to Federal 6 Defendants’ Reply in Support of their Cross-Motion for Summary 7 Judgment on Counts Two Through Four of the First Amended Complaint” 8 (Doc. 168) is GRANTED; 9 (3) Plaintiffs’ Motion for Summary Judgment (Doc. 150) is 10 DENIED in its entirety; 11 (4) Federal Defendants’ Cross-Motion for Summary Judgment (Doc. 12 154) is GRANTED in its entirety: 13 (5) LPMP’s Cross-Motion for Summary Judgment (Doc. 157) is 14 GRANTED in its entirety; and 15 (6) “Plaintiffs’ Motion to Strike Extra-Record Documents 16 Intervenor Lake Pleasant Marina Partners Attached to its Reply in 17 Support of its Cross-Motion for Summary Judgment” (Doc. 169) is 18 DENIED as moot. 19 (7) The Clerk is directed to enter judgment in favor of the 20 federal defendants and LPMP and terminate this action. 21 DATED this 29th day of July, 2010. 22 23 24 25 26 27 28 - 122 - 1 Copies to counsel of record 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 123 -

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