Japanese Village, LLC v. Federal Transit Administration
843 F.3d 445
| 9th Cir. | 2016Background
- Metro proposed the 1.9-mile Regional Connector Transit Corridor (underground light-rail) in downtown Los Angeles with FTA funding; Japanese Village, LLC and the Westin Bonaventure own property near the alignment.
- FTA/Metro issued a DEIS (2010), SEA (2011), FEIS (Jan. 2012), Metro Board approval (Apr. 26, 2012) and the FTA ROD (June 29, 2012) with a Mitigation Monitoring and Reporting Program (MMRP); plaintiffs sued under NEPA challenging adequacy of the EIS/ROD.
- Key substantive disputes: construction and operational noise/vibration mitigation (including use of isolated slab track), temporary relocation, subsidence/compensation grouting thresholds, parking impacts, feasibility of Closed-Face TBM on Lower Flower, and whether a supplemental EIS was required after post-FEIS changes (e.g., nighttime construction variances).
- District court granted summary judgment for defendants on nearly all NEPA claims; plaintiffs appealed. During the appeals, Metro/FTA issued a Final Supplemental EIS (Dec. 2015) that addressed some post-FEIS analyses and expressly adopted some mitigation measures.
- The Ninth Circuit affirmed the district court: it applied arbitrary-and-capricious review and found the agencies took the requisite "hard look," rejecting plaintiffs’ NEPA challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy/assembly of ROD/MMRP | Japanese Village: MMRP not properly attached to ROD; ROD fails to summarize monitoring/enforcement | Defendants: documents are in the administrative record; issue not raised below (waived) | Waived on appeal; court declined to consider (no exception shown) |
| Construction noise/vibration & temporary relocation | Japanese Village: FEIS/ROD failed to adopt/adequately analyze mitigation; relocation cannot be mitigation | Defendants: post-FEIS analyses and board action adopted additional NV measures; relocation can be addressed and Relocation Act considered | Agencies analyzed and later adopted mitigation; NEPA satisfied because agencies took a hard look; relocation issue need not be resolved as a categorical bar given procedural adequacy |
| Operational vibration (isolated slab track) | Japanese Village: FEIS should have required IST; agency ignored expert reports showing IST necessary | Defendants: FEIS allowed "other appropriate measures" and post-FEIS adoption/clarification shows IST was adopted for Japanese Village | No NEPA violation: FEIS provided for further design study and mitigation; IST adoption by Metro/FTA during the approval process cures the concern (moot as to implementation) |
| Subsidence mitigation and grouting triggers | Japanese Village: MMRP deferred too much and failed to set explicit 0.25" grouting trigger | Defendants: MMRP, baseline surveys, expert analysis and adaptive monitoring provide sufficient detail; thresholds tied to engineering criteria | Sufficient: site-specific monitoring, expert study, and adaptive management satisfied NEPA’s "hard look" requirement |
| Parking impacts | Japanese Village: FEIS failed to analyze impacts on plaintiff's parking structure specifically | Defendants: FEIS included a thorough transport/parking analysis, station toolkit and proposed mitigation/monitoring | Adequate: agency took a hard look and discussed mitigation and expected offsets; NEPA requires process, not particular substantive outcomes |
| Closed-Face TBM feasibility on Lower Flower | Bonaventure: TBM was viable and agency failed to analyze it properly | Defendants: FEIS explained infeasibility due to pocket/crossover track needs, preservation of future station option, and existing tiebacks; post-FEIS refinements do not retroactively invalidate FEIS | Agency’s technical determinations were reasonable; later reassessment and board action do not render the FEIS inadequate under NEPA |
| Need for supplemental EIS (nighttime construction variances) | Bonaventure: Metro’s post-FEIS requests for noise variances and nighttime work required supplementation | Defendants: variance requests were within the range already considered; FEIS analyzed potential nighttime noise and mitigation | No supplemental EIS required: changes/variance applications did not present significant new information or substantial changes not already considered |
Key Cases Cited
- Rattlesnake Coal. v. EPA, 509 F.3d 1095 (9th Cir.) (NEPA applies where federal funding makes the action federal)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (U.S. 1989) (agencies need not supplement an EIS for every new piece of information; narrow review)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (EIS must discuss mitigation measures and NEPA prescribes procedure, not results)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (U.S. 1971) (standard for arbitrary and capricious review)
- Conner v. Burford, 848 F.2d 1441 (9th Cir.) (NEPA does not require mitigation to fully compensate environmental harms)
- South Fork Band Council of W. Shoshone v. U.S. Dep’t of the Interior, 588 F.3d 718 (9th Cir.) (agencies cannot defer mitigation discussion so completely that harms remain unevaluated)
- Protect Our Communities Foundation v. Jewell, 825 F.3d 571 (9th Cir.) (approval of adaptive management/monitoring strategies in an EIS)
- Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024 (9th Cir.) (existence of a viable but unexamined alternative can render an EIS inadequate)
- Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723 (9th Cir.) (agency need not study infeasible alternatives in detail)
- Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853 (9th Cir.) (agency discretion to reject alternatives ineffective for project goals)
- City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142 (9th Cir.) (EIS must provide sufficient mitigation discussion but need not include a fully formulated mitigation plan)