Memorandum Opinion and Order - US District Court - Northern ...

More documents

Recommendations

Info

1060, 1064 (9th Cir. 1995). The EIS “insures the integrity of the agency process by forcing it toface those stubborn, difficult-to-answer objections without ignoring them or sweeping themunder the rug and serves as an environmental full disclosure so that the public can weigh aproject’s benefits against its environmental costs.” Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7,12 (2d Cir. 1997) (quoting Sierra Club v. United States Army Corps of Eng’rs, 772 F.2d 1043,1049 (2d Cir. 1985)) (internal quotations omitted).However, because NEPA does not contain provisions to determine whether agency actioncomplies with NEPA’s necessary processes, compliance with NEPA is reviewed under the APA,5 U.S.C. § 500, et seq. (1996). 4 See Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988)(concluding that “NEPA itself authorizes no private right of action, . . . [b]ut the APA providesfor judicial review of agency action” under § 702 of the APA). Judicial review of agency actionunder the APA requires a “thorough, probing, in-depth review” of the AR to determine “whetherthe decision was based on a consideration of the relevant factors and whether there has been aclear error of judgment.” ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 184 (Fed. Cl.1999).4Hereinafter cited as “APA § . . .”18
The APA provides the following scope of judicial review:To the extent necessary to decision and when presented, the reviewing court shalldecide all relevant questions of law, interpret constitutional and statutoryprovisions, and determine the meaning or applicability of the terms of an agencyaction. The reviewing court shall–(1) compel agency action unlawfully withheld or unreasonably delayed; and(2) hold unlawful and set aside agency action, findings, and conclusionsfound to be–(A)(B)(C)(D)(E)(F)arbitrary, capricious, an abuse of discretion, or otherwise not inaccordance with law;contrary to constitutional right, power, privilege, or immunity;in excess of statutory jurisdiction, authority, or limitations, or short ofstatutory right;without observance of procedure required by law;unsupported by substantial evidence in a case subject to sections 556 and557 of this title or otherwise reviewed on the record of an agency hearingprovided by statute; orunwarranted by the facts to the extent that the facts are subject to trial denovo by the reviewing court.APA § 706.In making the foregoing determinations, the court shall review the whole record or thoseparts of it cited by a party, and due account shall be taken of the rule of prejudicial error.Because NEPA “exists to ensure a process, not a result,” Mississippi River Basin Alliancev. Westphal, 230 F.3d 170, 175 (5th Cir. 2000) (quoting Morongo Band of Mission Indians v.FAA, 161 F.3d 569, 575 (9th Cir. 1998)), “the variability of this procedural requirement hasproduced grossly general and conflicting judicial pronouncements.” Trans-Am. Van Serv., Inc.v. United States, 421 F. Supp. 308, 318 (N.D. Tex. 1976). Consequently, a number of courts19
Page 3 and 4: Dale and Susan Toone; Tim and Rexan
Page 5: would cause a potential disturbance
Page 8 and 9: Fourth:Violation of NEPA, Failure t
Page 10 and 11: Eleventh:Violation of NEPA, Commitm
Page 12 and 13: October 22, 2001. Plaintiffs’ Fir
Page 14 and 15: Defendants’ Cross-Motion for Summ
Page 16 and 17: not arbitrary and capricious.” Id
Page 20 and 21: egan to expand the definition of th
Page 22 and 23: data and articulate a satisfactory
Page 24 and 25: impacts on livestock and poultry pr
Page 26 and 27: of the Lancer MOA would have a sign
Page 28 and 29: values beneath MTRs and/or MOAs. Ra
Page 30 and 31: specking.” Lathan v. Brinegar, 50
Page 32 and 33: this Court’s review of the AR rev
Page 34 and 35: elevant to a “significant” effe
Page 36 and 37: evidence does not invalidate the [a
Page 38 and 39: analysis, especially in light of De
Page 40 and 41: following which Defendants held ano
Page 42 and 43: of the RBTI. Therefore, to the exte
Page 44 and 45: 40 C.F.R. § 1508.20.D. Reducing or
Page 46 and 47: D. Untimely Participation of FAAPla
Page 48 and 49: and use of IR-178. Consequently, Pl
Page 50 and 51: considered the adequacy, practicabi
Page 52 and 53: evaluation of the benefits of the p
Page 54 and 55: However, when considered in conjunc
Page 56 and 57: Accordingly, this Court finds that
Page 58 and 59: Judicial Determination“The purpos
Page 60 and 61: Here, this Court finds that Defenda
Page 62: Further, after considering all the

Memorandum Opinion and Order - US District Court - Northern ...

Create successful ePaper yourself

Delete template?

Save as template?