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Posts Tagged ‘NEPA’


NINTH CIRCUIT REJECTS NEPA CHALLENGE TO THE JAMUL INDIAN VILLAGE CASINO PROJECT

Friday, July 29th, 2016

In Jamul Action Committee v. Chaudhuri, 2016 U.S. App. LEXIS 13104, the Ninth Circuit held that the National Environmental Protection Act (NEPA) did not apply to the Jamul Indian Village Casino project in Jamul, California due to an irreconcilable timing conflict between NEPA and the Indian Gaming Regulatory Act (IGRA).

The Jamul Indian Village (Tribe), a federally-recognized Indian tribe, has been planning the Casino for more than fifteen years. In the late 1990s, the Tribe enacted a gaming ordinance (GO) describing how it would operate a high-stakes gaming facility in Jamul. In 2013, the National Indian Gaming Commission (Commission) approved a revised GO for the project under the IGRA.

The Casino has been opposed by many individuals and organizations, including the Jamul Action Committee, the Jamul Community Church, and four residents of rural Jamul. This lawsuit against the Commission was the most recent attempt to stop the project. The project opponents argued that NEPA review should have been conducted before the Commission approved the revised GO in 2013. The district court held that a NEPA review was not required because the Commission’s approval was not a major federal action within the meaning of NEPA.

The Ninth Circuit affirmed the district court’s decision, but on different grounds. The appellate court, citing Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma (1976) 426 U.S. 776, held that a NEPA review was not required due to an irreconcilable and fundamental conflict between IGRA and NEPA. The court reasoned that it was impossible for the Commission to comply with both statutes. The shortest time frame in which an EIS could be prepared under the NEPA statutory scheme was 120 days. But under IGRA, the Commission was required to approve the revised GO within 90 days of receiving it, a timeline controlled by Congress and triggered by the action of the Tribe.

Key Point: An agency may not be required to prepare an EIS, even for a major federal action, if an irreconcilable and fundamental conflict exists between NEPA and another applicable substantive statute. Such a conflict exists when a statute mandates a fixed deadline that is too short to allow the agency to comply with NEPA and the deadline and action triggering the deadline are not within the agency’s control.

NINTH CIRCUIT REJECTS NEPA CHALLENGE TO CHANGES TO ALBENI FALLS DAM OPERATIONS

Monday, June 27th, 2016

In Idaho Conservation League v. Bonneville Power Administration, 2016 U.S. App. LEXIS 11175, the Ninth Circuit rejected a National Environmental Protection Act (“NEPA”) challenge to changes in the operation of the Albeni Falls Dam.

The Dam, constructed in 1957 as part of the Federal Columbia River Power System, helps provide power to the Pacific Northwest. It is jointly managed by the U.S. Army Corps of Engineers (“Corps”), the Bonneville Power Administration (“BPA”), and the Bureau of Reclamation. The Dam straddles the Pend Oreille River, which connects Lake Pend Orielle and the Columbia River. When water is released from the lake, it drives turbines that generate electricity. For decades, the Corps fluctuated the level of the lake in some winters in order to generate power as needed.

In 1995, the Corps became concerned that the winter fluctuations were adversely affecting the kokanee salmon. In 1997, the Corps began holding the lake’s elevation constant in the winter. In 2009, BPA urged the Corps to return to a flexible management approach so the Dam could generate power year-round if needed. After two years of discussions and a public comment period, the agencies issued an environmental assessment in 2011. It concluded the proposed winter fluctuations would have no significant environmental impact.

Petitioner argued that an environmental impact statement (“EIS”) should have been prepared because this change to the ongoing operations that amounted to a “major Federal action.” The Ninth Circuit, citing Upper Snake River Chapter of Trout Unlimited v. Hodel (9th Cir. 1990) 921 F.2d 232, held that an EIS was not required because the proposed winter fluctuations did not result in a significant shift in operational policy or change the status quo due to the pre-1997 operations at the Dam. The court also noted that the agencies maintained discretion to change the water levels from 1997 to 2011 and met yearly to decide how the Dam would be operated. As stated by the court: “Requiring an agency to prepare an EIS every time it takes an action consistent with past conduct would grind agency decisionmaking to a halt.”

Key Point

In determining whether a proposed change to the existing operation of a facility constitutes a major Federal action significantly affecting the quality of the human environment, thereby triggering an EIS under NEPA, courts consider several factors including whether the change would alter the status quo in light of the past and current operations. In this instance, a proposed action that involved operating a completed facility in a way that it had been operated in the past did not change the status quo, was not considered a major action, and thus did not require an EIS.

Ninth Circuit Requires 2004 EIS to Include Higher Level of Analysis of Environmental Impacts on Fish, While Finding the Analysis of Environmental Impacts on Amphibians Sufficient

Thursday, June 28th, 2012

In January 2001, the United States Forest Service (Forest Service) issued an environmental impact statement (EIS) recommending amendments to the Forest Plans in the Sierras Madre Mountains (2001 EIS) to conserve and repair the riparian and amphibian habitat. By November 2001, the Forest Service reviewed the 2001 EIS and its proposed alternatives, and made several substantial changes, issuing a new EIS (2004 EIS) and adopting a new alternative (2004 Framework). The Pacific Rivers Council brought suit in Pacific Rivers Council v. United States Forest Service, 2012 U.S. App. LEXIS 12553, claiming that the Forest Service’s 2004 EIS violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA) by failing to take the requisite “hard look” at the environmental effects of the 2004 Framework on fish and amphibians. The United States Court of Appeals for the Ninth Circuit held that the 2004 EIS was deficient in its analysis on fish, however, sufficient in its analysis on amphibians.

With respect to the analysis of environmental consequences on fish, the Forest Service argued that the 2004 Framework was nothing more than an amendment to the Forest Plans, and thus it was not reasonably possible to provide an analysis of the environmental consequences on individual fish species. The Forest Service also claimed that the 2004 EIS satisfied the required “hard look” by incorporating the biological assessments (BA) by reference. The court disagreed with both arguments.

Responding to the Forest Service’s first argument, the court held that, based on the detailed analysis of the environmental effects on individual fish species in the 2001 EIS, along with the detailed analysis of environmental effects on individual species of mammals, birds, and amphibians in the 2004 EIS, a detailed analysis of fish in the 2004 EIS was in fact “reasonably possible.” The court explained that while the 2004 EIS was not required to have the same level of detail as the 2001 EIS, its complete lack of analysis, along with the absence of any explanation as to why no analysis was even included, was a violation of NEPA.

The court disagreed with the Forest Service’s second argument for three reasons. First, the court explained that depending on the nature of the information and its importance, it should either be in the text of the EIS, in an appendix to the EIS, or incorporated by reference. If the BAs were to serve as the requisite analysis, as argued by the Forest Service, then they should not have simply been referenced. Nor should they be included as an appendix. Based on their importance, the BAs should have been described and analyzed in the text. Next, the court held that the BAs could not even serve as the requisite “hard look” because there was no analysis of the degree or the manner by which the 2004 Framework may have affected the fish. Lastly, the court found that the BAs applied only to one group of fish species, as opposed to the three groups analyzed in the 2001 EIS. Based on those three findings, the court held that the 2004 EIS’s analysis of environmental consequences on fish was inadequate and in violation of NEPA.

With respect to amphibians, the court found the Forest Service’s 2004 EIS sufficient under NEPA. The 2004 EIS contained an extensive analysis of individual amphibians, identified changes between the 2001 and 2004 Frameworks that were likely to affect the species, and discussed mitigation strategies to minimize the environmental consequences of the 2004 Framework on amphibians. The court held that, since the Forest Service’s 2004 Framework stated that additional NEPA analysis would occur at the project-level, the current level of analysis was sufficient since site-specific projects are not yet at issue. Therefore, the court found the 2004 EIS’s analysis of environmental impacts on amphibians sufficient under NEPA.

Key Point:

The importance of information determines where the information must be presented in an EIS. The most important information must be analyzed in the text, less important information can be put in the appendix, and the least important information need only be referenced. Also, if an amendment to an alternative is significant, a new EIS must be prepared to take the requisite “hard look” at environmental consequences. A “hard look” involves considering all foreseeable direct and indirect impacts, as well as discussing the adverse impacts that do not improperly minimize negative side effects.

Written By: Tina Thomas, Amy Higuera and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Ninth Circuit Ruled in Favor of Tribe, Finding that the US Forest Service Violated the ESA by Giving Permission to Mine in a National Forest

Tuesday, June 12th, 2012

In Karuk Tribe of California v. United States Forest Service, 2012 U.S. App. LEXIS 11145, the Ninth Circuit Court of Appeals held that the Forest Service (Service) violated the Endangered Species Act (ESA) by failing to consult with the appropriate wildlife agencies before approving four notices of intent (NOI). The NOIs gave miners permission to conduct private mining activities, including suction dredging, in the Klamath National Forest. Under Section 7 of the ESA, an agency must consult with wildlife agencies for any “agency action” that “may affect” a listed species or its critical habitat. The court focused on two substantive questions: 1) whether Service’s approval of the NOIs constituted “agency action” within the meaning of Section 7; and 2) whether the approved mining activities “may affect” a listed species or its critical habitat. Answering both in the affirmative, the court remanded the case for entry of judgment in favor of the Karuk Tribe (Tribe).

Before considering the substantive questions, the court addressed the Service’s argument that, due to the statewide moratorium on suction dredge mining, the case was moot. However, the court explained that the moratorium did not prohibit other mining activities at issue in this case, and the moratorium was only temporary. Also, the court found that even though the NOIs the Tribe challenged had already expired, the case could still be heard under the “capable of repetition, yet evading review” exception to the mootness doctrine. Since the Tribe could not feasibly complete litigation before the NOIs expire, and since there is a reasonable expectation that the Service will engage in the challenged conduct again in the future, the court decided to hear the case and rule on its merits.

Turning to the first issue of “agency action,” the court explained that an agency must consult under Section 7 if two criteria are met. First, the agency must make an affirmative authorization. In past cases, the court found that the Service’s approval of an NOI was not merely advisory but rather a final agency action that “marks the consummation of the agency’s decision making process.” Hells Canyon Pres. Council v. U.S. Forest Serv., 595 F.3d 923, 930 (9th Cir. 2010). Based on that case law, along with the Service’s mining regulations and actions, the court determined that the Service had affirmatively authorized the private mining activities to proceed when it approved the four NOIs.

Second, the action must have “discretionary federal involvement or control.” Karuk Tribe of Cal., 2012 U.S. App. LEXIS 11145 at 42. The Service’s actions meet that criterion if the Service could influence a private activity to help a listed species. The court found three ways in which the Service exercised discretion in deciding whether to approve the NOIs: 1) by formulating criteria to protect the Coho salmon; 2) by refusing to approve a NOI because it had insufficient protection of the salmon habitat; 3) by applying different criteria for different areas of the Klamath National Forest. These three examples, along with established case law, supported the court’s finding that the Service’s actions of approving the four NOIs constituted an affirmative, discretionary decision to allow private mining activities to proceed. The Service therefore had a duty to discuss matters with the appropriate wildlife agencies.

The court next found that the approved mining activities “may affect” a listed species and its critical habitat. The court first looked at the record and found ample evidence that the mining activities, especially suction dredge mining, “may affect” Coho salmon. Along with the record, the court explained that by definition, mining activities that require a NOI “might cause” disturbance of surface resources, thus they “may affect” the environment and listed species. The court concluded that because the mining activities clearly “may affect” a listed species and its critical habitat, and because the Service’s actions constituted “agency action,” the Service had a duty to consult under Section 7 before approving the four NOIs. The Service’s failure to do so constituted a violation of the ESA.

Key Point:

This case confirms that, before an agency can conduct an “agency action” that “may affect” a listed species or its critical habitat, it must consult with the appropriate wildlife agencies. Agencies that make an affirmative authorization while retaining discretionary control and also have the capacity to benefit listed species must discuss matters further with expert wildlife agencies.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Rules in Favor of Forest Service’s Approval of Post-Fire Logging and Restoration Project

Tuesday, May 8th, 2012

In Earth Island Institute v. Carlton, (2012) 2012 U.S. Dist. LEXIS 44177, petitioner challenged a logging and restoration project under the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”). The district court granted defendants’ motion for summary judgment. Plaintiff makes four central arguments for why Defendants violated NEPA in the preparation of the Revised Final Environmental Impact Statement: (1) the USFS failed to ensure the scientific accuracy and integrity of the Environmental Impact Statement (EIS) and failed to disclose its methodology; (2) the USFS failed to meaningfully respond to dissenting scientific opinion in the EIS; (3) the USFS failed to take a hard look at the impacts of the project on the Black-Backed Woodpecker; and (4) the USFS failed to prepare a supplemental EIS in light of a new study on Black-Backed Woodpecker viability. The court found no clear error that rendered the decision arbitrary and capricious. The court also found that including a response to a comment in an appendix to the EIS rather than the body of the EIS did not violate NEPA.

With respect to the NFMA challenge, although the court acknowledged that a plan relied on by USFS was somewhat ambiguous, but because the court is required to defer to USFS interpretation of its own plans found USFS’s actions were not arbitrary and capricious.

Written By: Tina Thomas and Chris Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Rules Forest Service’s Categorical Exclusion Memos are Arbitrary and Capricious Regarding Livestock Grazing

Tuesday, May 8th, 2012

In Western Watersheds v. United States Forest Service, (2012) 2012 U.S. Dist. LEXIS 45573, petitioners challenged the Forest Service’s alleged practice of reauthorizing livestock grazing on federal land without conducting the proper environmental review under the National Environmental Policy Act (“NEPA”). The court concluded that the actions by the Forest Service in connection with the Big Ridge categorical exclusion and Mendocino categorical exclusion decision memos were arbitrary and capricious in certain respects and failed to take the “hard look” required by NEPA. Rather than entering summary judgment, the court directed the parties to confer regarding whether it would be more appropriate for the court to retain jurisdiction while the Forest Service complied with NEPA.

Written By: Tina Thomas and Chris Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Ninth Circuit Reiterates that Laches is Strongly Disfavored in Environmental Cases

Tuesday, March 6th, 2012

In Save the Peaks Coalition v. United States Forest Service (9th Cir. 2012) 2012 U.S. App. LEXIS 2563, the Ninth Circuit Court of Appeals determined that, although Save the Peaks Coalition (“SPC”) abused the judicial process by holding back claims that should have been asserted in an earlier litigation, laches did not bar SPC from bringing a challenge under the National Environmental Policy Act (“NEPA”) because the United States Forest Service (“USFS”) failed to demonstrate that it suffered prejudice. However, the Court found that the USFS complied with NEPA, thus upholding the lower court’s decision to grant USFS’s motion for summary judgment.

In a prior lawsuit, a different petitioner – utilizing the same attorney as SPC – brought a similar complaint challenging USFS’s approval of the use of man-made snow from Class A+ reclaimed water at a ski area in the San Francisco Peaks. In light of the prior case, the District Court found that laches barred SPC’s action. SPC timely appealed, first claiming that the lower court erred in finding that laches barred its claims, and second that the USFS violated NEPA because: 1) USFS’s final environmental impact statement (FEIS) did not thoroughly discuss the significant environmental consequences of making snow from reclaimed water; 2) USFS failed to ensure scientific integrity of its analysis; and, 3) USFS did not disseminate quality information.

Laches apply when there is clear evidence that (1) the plaintiff lacked diligence in pursuing its claims, and (2) the defendant experienced prejudice as a result. To determine whether a plaintiff lacks diligence, a court must consider several factors, such as whether the plaintiff communicated its position to the defendant, the nature of the defendant’s response, and the length of delay. Here, the Court found that SPC lacked diligence. However, the Court held that USFS failed to show it experienced prejudice as a result of SPC’s delay. Specifically, USFS had not started construction before the suit was filed, and no irreversible harm was done. Because USFS did not show prejudice, the Court ruled that the lower court erred in barring SPC’s claims by laches. In reaching its holding, the Court explained that courts strongly discourage the use of laches as a defense in environmental cases. Environmental damages affect more than just the plaintiff, and use of laches to defeat a challenge typically would conflict with the purpose behind Congressional environmental policies.

Turning to SPC’s NEPA claims, the Court used a rule of reason standard to determine whether USFS took a “hard look” at the environmental consequences of making snow with reclaimed water, as required by NEPA. In rejecting SPC’s arguments, the Court found that the USFS’s FEIS discussed the significant probable environmental impacts and was replete with careful considerations of the risks its decision posed. The lengthy discussion in the FEIS, along with USFS’s responses to comments, compelled the Court to rule that the USFS did in fact take the requisite “hard look” at the environmental impacts and human risks of making snow with reclaimed water. The Court also rejected SPC’s argument that USFS failed to ensure scientific integrity pursuant to NEPA by considering the conclusions of the Arizona Department of Environmental Quality (ADEQ). The Court dispelled this argument by showing that the USFS’s careful consideration of the risks made little reference to the ADEQ analysis. SPC’s last argument concerning the dissemination of quality information was abandoned due to failure to respond to USFS’s summary judgment motion on the issue.

Key Points: 

As demonstrated in Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, where privity between parties can be established res judicata may bar the subsequent litigation making it unnecessary to establish laches.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Holds Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department

Tuesday, February 21st, 2012

In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.

Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.

Key Points:

Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Federal District Court Grants Summary Judgment in Agency’s Favor on NEPA Issues and in Plaintiff’s Favor on Wilderness Act Issues

Tuesday, February 7th, 2012

In High Sierra Hikers Association v. United States Department of the Interior (N.D.Cal. 2012) 2012 U.S. Dist. LEXIS 7664, the U.S. District Court for the Northern District of California, San Francisco Division, addressed whether the National Park Service (NPS) adequately assessed the environmental consequences of its General Management Plan for Sequoia and Kings Canyon National Parks (GMP) under the requirements of the Wilderness Act and the National Environmental Policy Act (NEPA). The Court concluded that under the Wilderness Act, an agency must conduct a “necessity” finding regardless of the type of Environmental Impact Statement (EIS) prepared. However, under NEPA, the Court explained that the level of analysis conducted by NPS was adequate for a programmatic EIS.

The Wilderness Act charges agencies, such as NPS, with the task of passing regulations that put the preservation of nature above commercial enterprises. If an agency wants to allow commercial activities, the agency must conduct a specialized “necessity” finding, showing that it considered the impacts of commercial activities and balanced all relevant factors. NPS argued the Act applies only to decisions that expressly permit commercial activities. NPS asserted that because the GMP is only a programmatic plan authorizing use at current levels, NPS was not required to make specialized findings until it implements its Wilderness Stewardship Plan (WSP). The Court disagreed, rejecting any distinction based on whether the agency is permitting new levels or simply authorizing current levels of commercial activity. Rather, the Court stated that since the NPS is charged with the main responsibility of preserving nature from commercial activities, a necessity finding is required under the Act. Therefore, the Court ruled in favor of the Plaintiff, holding that the GMP violated the Wilderness Act.

In addressing the Plaintiff’s NEPA argument, the Court noted that NEPA requirements differ based on the type of EIS required for a project. For a programmatic EIS, like the one approved by NPS, NEPA only requires an agency to include sufficient detail to help make an informed decision, whereas a site-specific EIS requires more specific data-gathering and analysis of impacts. The Court also emphasized that NEPA is a procedural statute, not concerned with outcomes but rather the process agencies must go through to ensure they make informed decisions. NEPA provides that agencies must take a hard look at the environmental impacts of their decisions, and must prepare an EIS that is available to the public and contains an analysis of possible environmental impacts along with reasonable alternatives.

In rejecting Plaintiff’s argument concerning the range of alternatives included in the EIS, the Court explained that NEPA does not require an agency to assess every alternative, but only the ones that are necessary to help make a reasonable decision and to allow for public participation. To determine which alternatives are reasonable, the Court explained that it must defer to the agency’s statement of purpose. In light of the stated purpose of the GMP, and because more detailed project-specific analysis will be considered by NPS when it adopts the WSP, the Court determined that the alternatives included in the EIS were sufficient under NEPA.

Next, the Court rejected Plaintiff’s argument that NPS failed to take a hard look at the impacts of the GMP and Packer Permits. The Court explained that the level of analysis required to constitute a “hard look” depends on the type of EIS at issue. The Court held the analysis NPS conducted was adequate under NEPA requirements for a programmatic EIS. The Court also held that NPS reasonably deferred further, more detailed analysis until the WSP.

Lastly, the Court declined to require NPS conduct additional analysis regarding the impact of renewing the Packer Permits. The Court concluded that the Plaintiff did not demonstrate a substantive basis for the claim that the prior environmental assessments relied upon in approving Packer Permits were outdated. Therefore, NPS did not violate NEPA in deciding to maintain the status quo by issuing Packer Permits at current levels.

Key Points:

NEPA is a procedural act designed to ensure agencies take a hard look at environmental issues before taking actions that may impact the environment. Outside of the NEPA process, federal law includes a number of substantive environmental mandates that must be addressed by agencies. Agencies must be cautious to comply with the requirements of all applicable federal environmental laws not just NEPA.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Federal Court Affirms that the 90-day Rule to Request a CEQA Hearing is Mandatory

Friday, February 3rd, 2012

In Friends of Roeding Park v. City of Fresno (E.D. 2012) 2012 U.S. Dist. LEXIS 11691, the District Court granted the city’s motion to dismiss Plaintiffs’ lawsuit challenging the planned expansion of the Fresno Chafee Zoo ruling (1) the Court lacks subject matter jurisdiction over Plaintiffs’ National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), and Land and Water Conservation Fund Act (LWCFA); (2) Plaintiffs failed to state any cognizable Equal Protection and Due Process claims under 42 U.S.C. § 1983; (3) Plaintiffs failed to state a California Code of Civil Procedure § 526(a) claim; and (4) Plaintiffs failed to request a hearing within 90 days of the filing of the petition as required by the California Environmental Quality Act (CEQA). The CEQA claim was dismissed without leave to amend.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.