Japanese Village, LLC v. Federal Transit Administration

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAPANESE VILLAGE, LLC, a No. 14-56837
California Limited Liability
Company, D.C. No.
Plaintiff-Appellant, 2:13-cv-00396-
JAK-PLA
v.
FEDERAL TRANSIT OPINION
ADMINISTRATION; CAROLYN
FLOWERS, in her official capacity as
Acting Administrator of the Federal
Transit Administration; LESLIE T.
ROGERS, in his official capacity as
Regional Administrator of the
Region IX Office of the Federal
Transit Administration; U.S.
DEPARTMENT OF TRANSPORTATION;
ANTHONY FOXX, in his official
capacity as Secretary of the U.S.
Department of Transportation; LOS
ANGELES METROPOLITAN
TRANSPORTATION AUTHORITY, a
California-chartered Regional
Transportation Planning Agency,
Defendants-Appellees.
2 JAPANESE VILLAGE V. FTA
TODAY’S IV, INC., DBA Westin No. 14-56973
Bonaventure Hotel and Suites, a
California Corporation, D.C. No.
Plaintiff-Appellant, 2:13-cv-00378-
JAK-PLA
v.
FEDERAL TRANSIT
ADMINISTRATION; CAROLYN
FLOWERS, in her official capacity as
administrator of the Federal Transit
Administrator; LESLIE T. ROGERS, in
his official capacity as Regional
Administrator of the Federal Transit
Administrations Region IX Office;
UNITED STATES DEPARTMENT OF
TRANSPORTATION; ANTHONY FOXX,
in his official capacity as Secretary
of the United States Department of
Transportation; LOS ANGELES
COUNTY METROPOLITAN
TRANSPORTATION AUTHORITY, a
public entity; ARTHUR T. LEAHY, in
his official capacity as Chief
Executive Officer of the Los
Angeles County Metropolitan
Transportation Authority,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
JAPANESE VILLAGE V. FTA 3
Argued and Submitted August 1, 2016
Pasadena, California
Filed December 6, 2016
Before: Stephen Reinhardt and Kim McLane Wardlaw,
Circuit Judges, and Ronald M. Whyte,* District Judge.
Opinion by Judge Whyte
SUMMARY**
Environmental Law
The panel affirmed the district court’s summary judgment
in favor of federal and local transit agencies and officials
(appellees) on claims under the National Environmental
Policy Act brought by Japanese Village, LLC and Westin
Bonaventure Hotel alleging that appellees’ environmental
impact analysis for a new underground light rail line project
in downtown Los Angeles was inadequate.
Japanese Village and Bonaventure own real property near
the rail line project.
*
The Honorable Ronald M. Whyte, United States District Judge for
the Northern District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 JAPANESE VILLAGE V. FTA
As a preliminary matter, the panel declined to take
judicial notice of three documents on the Los Angeles
Metropolitan Transportation Authority website because the
documents were already in the appellate record. The panel
also declined to consider Japanese Village’s argument, that
the Mitigation Monitoring and Reporting Program was not
properly attached to the federal Record of Decision, because
Japanese Village failed to present the argument to the district
court.
The panel rejected Japanese Village’s challenges to the
adequacy of the mitigation plan included with the Final
Environmental Impact Statement issued in January 2012.
Specifically, the panel held that appellees analyzed and
adopted additional mitigation measures for construction-
related noises and vibration in Japanese Village after the
release of the Final Environmental Impact Statement, and the
failure to see the need for these mitigation measures at the
time the impact statement was released in January 2012 did
not violate NEPA. The panel further held that regardless of
whether temporary relocation was considered a mitigation
measure or a source of harm, appellees did not violate NEPA
as long as they took a hard look at each alternative and
discussed the extent to which adverse effects could be
avoided. The panel also held that appellees did not violate
NEPA by not specifically requiring “isolated slab track”
technology to mitigate operational noise and vibration from
trains passing below Japanese Village. The panel also held
that appellees’ plan to mitigate potential building subsidence
due to tunneling under Japanese Village was not arbitrary and
capricious, an abuse of discretion, or otherwise in violation of
law. Finally, the panel concluded that appellees’ analysis of
off-street parking impacts was sufficient to pass muster under
NEPA.
JAPANESE VILLAGE V. FTA 5
Addressing Bonaventure Hotel’s arguments, the panel
held that appellees were not arbitrary or capricious in finding
that Closed-Face Tunnel Boring Machine construction was
not a feasible alternative as a tunneling method for the Lower
Flower portion of the Project. The panel also rejected
Bonaventure’s challenges to the sufficiency of the project
impact and mitigation analysis in the Final Environmental
Impact Statement. Finally, the panel held that no
supplemental Environmental Impact Statement was required,
and rejected Bonaventure’s claim that appellees were
required to prepare a supplemental statement because Los
Angeles Metro applied for noise ordinance variances to
accommodate nighttime construction on Lower Flower after
the issuance of the Final Environmental Impact Statement.
COUNSEL
Robert D. Crockett (argued), Courtney Vandreuil, and Chase
Tajima, Crockett & Associates, Santa Clarita, California, for
Plaintiff-Appellant Japanese Village, LLC.
Christopher Sutton (argued), Law Office of Christopher
Sutton, Pasadena, California; Robert P. Silverstein and Bradly
S. Torgan, The Silverstein Law Firm APC, Pasadena,
California, for Plaintiff-Appellant Today’s IV, Inc.
Erika B. Kranz (argued), J. David. Gunter, and Jared
Pattinato, II, Attorneys; John C. Cruden, Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C., for
Federal Defendants-Appellees.
6 JAPANESE VILLAGE V. FTA
Whitman F. Manley and Tiffany K. Wright, Remy Moose
Manley LLP, Sacramento, California; Mark J. Saladino,
Coujnty Counsel; Charles M. Safer, Assistant County
Counsel; Ronald W. Stamm, Principal Deputy County
Counsel; Los Angeles County Counsel, Los Angeles,
California; for Defendant-Appellee Los Angeles County
Metropolitan Transportation Authority.
OPINION
WHYTE, District Judge:
Appellants Japanese Village, LLC and Today’s IV, Inc.
dba Westin Bonaventure Hotel (“Bonaventure”) appeal from
the district court’s grant of summary judgment in favor of
Appellees on Appellants’ claims under the National
Environmental Policy Act, 42 U.S.C. § 4321 (“NEPA”).
Appellants argue that Appellees’1 environmental impact
analysis for a new underground light rail line project in
downtown Los Angeles was inadequate. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Metro plans to construct the Regional Connector Transit
Corridor Project (“the Project”), a 1.9-mile light rail
extension line in downtown Los Angeles, with federal
1
The Appellees are: the Federal Transit Administration (“FTA”);
Peter Rogoff, the Administrator of the FTA; Leslie Rogers, the Regional
Administrator of the Region IX Office of the FTA; the U.S. Department
of Transportation; Ray LaHood, the Secretary of the U.S. Department of
Transportation; and the Los Angeles Metropolitan Transportation
Authority (“Metro”).
JAPANESE VILLAGE V. FTA 7
funding from the Federal Transit Administration. The Project
is intended to meet increased demand for public transit and
improve transit service in the region by connecting the light
rail Gold Line to the Blue and Expo Lines. The route for the
extension line begins at 7th and Flower Streets and travels
north on Flower Street to 2nd Street. It then continues east on
2nd Street to Central Avenue, where it turns north to intersect
the Gold Line at 1st and Alameda Streets as shown below:
Appellants Japanese Village and Bonaventure own real
property near the Project. The Japanese Village Plaza is a
shopping center and office complex in the Little Tokyo area
at the eastern end of the proposed line, and the Westin
Bonaventure Hotel occupies the block bounded by Flower,
4th, 5th, and Figueroa Streets in the Financial District.
8 JAPANESE VILLAGE V. FTA
A. NEPA Requirements
The National Environmental Policy Act requires a federal
agency to prepare an Environmental Impact Statement
(“EIS”) for any “major Federal action[] significantly affecting
the quality of the human environment.” 42 U.S.C.
§ 4332(2)(C). NEPA applies to state transportation projects
with significant federal funding. Rattlesnake Coal. v. EPA,
509 F.3d 1095, 1101 (9th Cir. 2007). The EIS must include a
detailed statement regarding, inter alia: (i) “the
environmental impact of the proposed action”; (ii) “any
adverse environmental effects which cannot be avoided
should the proposal be implemented”; and (iii) “alternatives
to the proposed action.” 42 U.S.C. § 4332(2)(C). Once an
agency determines that an EIS is required, it must prepare a
draft EIS (“DEIS”). See 40 C.F.R. § 1502.9(a). The agency
then releases the DEIS to the public and other agencies for
comment. Id. § 1503.1(a). After the public comment period,
the agency prepares a final EIS (“FEIS”), in which it must
respond to comments made during the DEIS comment period.
Id. § 1502.9(b). After the FEIS is released, the agency has the
option to request comments before making a final decision.
Id. § 1503.1(b).
If the agency “makes substantial changes in the proposed
action that are relevant to environmental concerns” or there
are “significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action
or its impacts,” then the agency must prepare a supplemental
DEIS or FEIS. Id. § 1502.9(c).
The agency ultimately produces a record of decision
(“ROD”) that explains the rationale for agency’s decision. Id.
§ 1505.2. The ROD must include an assessment of all
JAPANESE VILLAGE V. FTA 9
practicable measures for mitigating environmental harm. See
id. § 1505.2(c).
B. Draft Environmental Impact Statement
In the instant case, the FTA published a Draft
Environmental Impact Statement for public comment in
September 2010. Metro had initially identified two build
alternatives for the Project: a light rail primarily operating
above ground (the “At-Grade Emphasis Alternative”) and a
light rail that was primarily underground (the “Underground
Emphasis Alternative”).2 During the DEIS drafting process,
Appellees established a Little Tokyo Working Group, made
up of leaders of the Little Tokyo Community Council and
Metro staff, to discuss the impact of the Project on the
community. The Little Tokyo community had concerns about
the negative construction and operation impacts of both the
At-Grade Emphasis Alternative and the Underground
Emphasis Alternative. To address these concerns, the Little
Tokyo Working Group collaborated on the development of
the “Fully Underground Alternative,” which Metro staff
recommended in the DEIS. After the period for public
comment on the DEIS, Metro’s Board of Directors voted to
designate the Fully Underground Alternative as the Locally
Preferred Alternative.
2
In total, the DEIS discusses five alternatives: (i) the required “No
Build Alternative”; (ii) rapid bus lines between the stations (the
“Transportation System Management Alternative”); (iii) the “At-Grade
Emphasis Alternative”; (iv) the “Underground Emphasis Alternative”; (v)
and the “Fully Underground Alternative.”
10 JAPANESE VILLAGE V. FTA
C. Supplemental Environmental Assessment
Appellees continued to refine the Locally Preferred
Alternative and addressed the impact of the refinements in a
Supplemental Environmental Assessment/Recirculated
Sections of the DEIS (“SEA”) released in July 2011. The
refinements included reductions in the use of “cut and cover
construction” for tunnel excavation, replaced by the use of
“Tunnel Boring Machine” or “TBM” excavation.
Cut and cover construction entails excavating down from
the ground surface using temporary excavation support to
stabilize the ground before excavation begins. Temporary
concrete decking is placed over the “cut” to allow traffic to
pass above during construction; once the tunnel is complete,
the excavated trench area is backfilled and the temporary
decking is replaced by permanent surface. A tunnel-boring
machine is a large-diameter horizontal drill that is used to
excavate circular tunnel sections. Compared to the cut and
cover method, tunnel boring is far less disruptive to surface
traffic and adjacent land uses.
The Project refinements addressed in the SEA extended
the use of TBM south along Flower Street from 2nd Street to
4th Street. The Project route was also realigned to eliminate
the use of cut and cover construction on 2nd Street in Little
Tokyo in favor of Closed Face TBM construction. The new
route required Metro to purchase an easement for tunneling
below the Japanese Village shopping center and office
complex. The period for public comment on the SEA closed
on September 6, 2011.
JAPANESE VILLAGE V. FTA 11
D. Final Environmental Impact Statement and Record of
Decision
On January 20, 2012, Appellees issued a Final
Environmental Impact Statement and included responses to
the public comments on the SEA. Appellees then accepted
additional public comment on the FEIS and conducted a
series of meetings with community stakeholders between
February and April 2012. These efforts resulted in Metro staff
recommending that the use of Closed-Face TBM be extended
even farther south along Flower Street from 4th Street to 5th
Street, budget permitting. Metro also conducted additional
analysis of the extent to which mitigation measures could
reduce noise and vibration in Japanese Village. In advance of
the meeting to approve the Project, Metro staff recommended
that the Board adopt additional mitigation measures for
Japanese Village.
On April 26, 2012, the Metro Board adopted the staff’s
recommendations and voted to approve the project. The FTA
issued its Record of Decision approving federal funding for
the Project on June 29, 2012. The ROD includes a mitigation
monitoring and report plan (“MMRP”) as Attachment A.
E. District Court’s Decision, Final Supplemental
Environmental Impact Statement, and Supplemental
Record of Decision
Japanese Village, Bonaventure, and a third plaintiff filed
complaints challenging Appellees’ NEPA compliance in
January 2013. The parties brought cross-motions for
summary judgment. The district court granted summary
judgment in favor of Appellees on all claims except for one
claim on which Bonaventure prevailed. Japanese Village and
12 JAPANESE VILLAGE V. FTA
Bonaventure timely appealed several aspects of the district
court’s summary judgment ruling in favor of Appellees.
In December 2015, during the pendency of these appeals,
Appellees published a Final Supplemental Environmental
Impact Statement (“FSEIS”) and Supplemental Record of
Decision. Appellees prepared the FSEIS because the district
court had entered an injunction in connection with the one
claim on which Bonaventure prevailed, requiring FTA and
Metro to adequately analyze the open-face tunneling
alternatives on Lower Flower before beginning cut and cover
construction in that area.3 In addition to the analysis required
by the district court, the FSEIS included discussion of
Closed-Face TBM on Lower Flower and expressly adopted
the additional mitigation measures for Japanese Village.
II. STANDARD OF REVIEW
We review the district court’s summary judgment ruling
de novo. San Luis & Delta-Mendota Water Auth. v. Jewell,
747 F.3d 581, 601 (9th Cir. 2014). Under the Administrative
Procedure Act, a “reviewing court shall . . . hold unlawful and
set aside agency action, findings, and conclusions found to be
. . . arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). “[I]n
making the factual inquiry concerning whether an agency
decision was ‘arbitrary or capricious,’ the reviewing court
‘must consider whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment.’ This inquiry must ‘be
3
The district found that the FSEIS adequately addressed the open-
face tunneling alternatives on Lower Flower and dissolved the injunction
on February 5, 2016.
JAPANESE VILLAGE V. FTA 13
searching and careful,’ but ‘the ultimate standard of review is
a narrow one.’” Marsh v. Or. Nat. Res. Council, 490 U.S.
360, 378 (1989) (quoting Citizens to Pres. Overton Park, Inc.
v. Volpe, 401 U.S. 402, 416 (1971) abrogated in part on other
grounds as recognized in Califano v. Sanders, 430 U.S. 99(1977)).
III. JAPANESE VILLAGE CLAIMS
Japanese Village argues that the FTA failed to comply
with NEPA’s procedural requirements for creating a Record
of Decision because the ROD in this case incorporates
mitigation measures by reference. More significantly,
Japanese Village argues that the FEIS does not include
adequate analysis and mitigation discussion of:
(1) construction-related noise and vibration impacts; (2) long-
term, operational noise and vibration impacts; (3) subsidence
risk; and (4) parking impacts. We address these arguments in
turn.
A. Judicial Notice of Material on Metro Website
As a preliminary matter, Japanese Village requests that
we take judicial notice of three documents on Metro’s
website: (1) a copy of the federal ROD in this case;
(2) “Attachment A: Mitigation Monitoring and Reporting
Program” (or “MMRP”); and (3) a web page containing links
to these two documents. Japanese Village offers these
documents to show that Appellees’ “official” MMRP on the
website matches one of the several versions of the MMRPs in
the appellate record. Appellees argue that judicial notice is
unnecessary because the FTA’s Region IX Administrator
submitted a declaration identifying the correct versions of the
ROD and its Attachments in the existing record. The
14 JAPANESE VILLAGE V. FTA
declarant confirmed that these documents are the same ones
on Metro’s website.
Judicial notice might ordinarily be appropriate for the
documents on Metro’s website because the documents were
“made publicly available by government entities . . . and
neither party disputes the authenticity of the web site[] or the
accuracy of the information displayed therein.” Daniels-Hall
v. National Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir.
2010) (citing Fed. R. Evid. 201). The parties at least agree
that the website contains the “official” copies of the ROD and
its attachments. In this case, however, it appears that the
Court need not rely on the Metro website because the
documents for which Japanese Village seeks judicial notice
are already in the appellate record. Accordingly, we decline
to take judicial notice of the three documents on Metro’s
website.
B. Adequacy of the Record of Decision’s Assembly
An ROD must “[s]tate whether all practicable means to
avoid or minimize environmental harm from the alternative
selected have been adopted, and if not, why they were not. A
monitoring and enforcement program shall be adopted and
summarized where applicable for any mitigation.” 40 C.F.R.
§ 1505.2(c). Japanese Village argues that the ROD in this
case fails to summarize Appellees’ monitoring and
enforcement program as required, apparently because the
ROD references an “Attachment A: Mitigation Monitoring
and Reporting Program,” but the MMRP is not directly
“attached” to the ROD. Rather, there is a gap in the page
numbering before the MMRP appears in the administrative
record, and, as noted above, the MMRP is in a separate
electronic file from the ROD on Metro’s website.
JAPANESE VILLAGE V. FTA 15
Appellees argue that Japanese Village waived any
argument that the FTA improperly assembled the ROD
because Japanese Village failed to present this argument to
the district court. “Absent exceptional circumstances,” we
“generally will not consider arguments raised for the first
time on appeal,” although we have discretion to do so. Baccei
v. United States, 632 F.3d 1140, 1149 (9th Cir. 2011). The
Court “may exercise this discretion (1) to prevent a
miscarriage of justice; (2) when a change in law raises a new
issue while an appeal is pending; and (3) when the issue is
purely one of law.” Id. Japanese Village acknowledges in
reply that it did not raise the issue of an ROD assembly defect
with the district court. Moreover, Japanese Village does not
argue that any exceptional circumstances require us to
consider its assembly defect arguments. Accordingly, we
decline to consider Japanese Village’s argument that the
MMRP was not properly attached to the ROD.
C. Adequacy of Environmental Impact Statement
Japanese Village challenges the adequacy of the
mitigation plan included with the FEIS that issued in January
2012. An EIS, which chronologically precedes an ROD, must
include a discussion of possible steps to mitigate
environmental harm. The U.S. Supreme Court has described
the mitigation requirement as follows:
[O]ne important ingredient of an EIS is the
discussion of steps that can be taken to
mitigate adverse environmental consequences.
The requirement that an EIS contain a detailed
discussion of possible mitigation measures
flows both from the language of the Act and,
more expressly, from CEQ’s implementing
16 JAPANESE VILLAGE V. FTA
regulations. Implicit in NEPA’s demand that
an agency prepare a detailed statement on
“any adverse environmental effects which
cannot be avoided should the proposal be
implemented,” 42 U.S.C. § 4332(C)(ii), is an
understanding that the EIS will discuss the
extent to which adverse effects can be
avoided.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
351–52 (1989) (citation omitted). As the Supreme Court and
Ninth Circuit have acknowledged, NEPA “does not mandate
particular results, but simply prescribes the necessary
process.” Id. at 350 (explaining that “[i]f the adverse
environmental effects of the proposed action are adequately
identified and evaluated, the agency is not constrained by
NEPA from deciding that other values outweigh the
environmental costs”); Conner v. Burford, 848 F.2d 1441,
1450 (9th Cir. 1988) (clarifying that “NEPA does not require
that mitigation measures completely compensate for the
adverse environmental effects”).
Japanese Village takes issue with four aspects of
Appellees’ mitigation plan, described below.
1. Construction-Related Noise and Vibration
Japanese Village first argues that Appellees have not
adequately addressed noise and vibration from construction
of tunnels under the Japanese Village property. As described
above, the FEIS was issued in January 2012. The FEIS noted
that during operation of the tunnel-boring machine, certain
portions of Japanese Village could sometimes experience
ground-borne vibration (GBV) of 86 VdB and ground-borne
JAPANESE VILLAGE V. FTA 17
noise (GBN) of approximately 51 dBA.4 Japanese Village
businesses fall into a category of land use for which the
federal annoyance criteria for infrequent vibration and noise
are 83 VdB and 48 dbA, respectively. Id. Thus, the FEIS
recognized that without some mitigation, construction could
cause significant impact to Japanese Village. The FEIS
described several mitigation measures, numbered with the
prefix “NV-,” that could reduce noise and vibration at various
construction locations. The measures include proper
“maintenance and operation” of equipment and use of a
“resilient mat” for delivery trains, among others. The FEIS
also provided that “Metro shall monitor GBN and GBV levels
in the in the [sic] building adjacent to TBM activity during its
operation in that area” and that “[d]uring the few days the
TBM will be operating in this area, should GBN or GBV
measurements exceed FTA annoyance criteria for short-term
impacts during construction, Metro shall offer to temporarily
relocate affected residents.”
During the comment period for the FEIS, Japanese
Village told Metro that the proposed noise and vibration
mitigation measures described in the FEIS were inadequate.
Specifically, Japanese Village argued that particular
mitigation measures adopted for other construction locations,
including NV-19, NV-21, NV-22, NV-23, and NV-27, should
also apply to Japanese Village.
Between the time the FEIS was issued and the time Metro
approved the Project on April 26, 2012, Metro conducted
additional analysis, and its experts estimated the extent to
which additional mitigation measures could reduce noise and
4
VdB is a measure of vibration in decibels. dBA is a measure of noise
in decibels.
18 JAPANESE VILLAGE V. FTA
vibration in Japanese Village. In advance of the meeting to
approve the Project, Metro recommended that additional
mitigation measures be adopted for Japanese Village,
including NV-19 (maintaining machinery); NV-21 (speed of
delivery trains); NV-22 (resilient mat); NV-23 (conveyor);
NV-27 (resiliently supported fasteners); and TR-1 (traffic
management). Ultimately, Metro approved the Project on
April 26, 2012, and the FTA issued its ROD, including the
MMRP described above, in June 2012.
On appeal, Japanese Village argues that Metro ignored
the advice of its experts because Metro did not actually vote
to approve the additional mitigation measures. Japanese
Village also argues that as a matter of law, relocation cannot
be used as a mitigation measure.
a. Whether Metro Adopted Mitigation Measures
Relying primarily on a transcript of Metro’s April 26,
2012 board meeting, Japanese Village argues that Metro’s
board voted to defer all mitigation measures rather than adopt
the additional measures its expert had recommended. We find
Japanese Village’s argument unpersuasive despite the lack of
clarity in the April 26, 2012 transcript, which contains several
references to “unintelligible” comments. Nevertheless, the
transcript indicates that the board voted to approve “Item A
through D as amended.” The board’s meeting minutes clarify
that “Item D” referred to utilizing additional noise and
vibration mitigation measures (NV-19, NV-21, NV-22, NV-
23, and NV-27, defined above) at Japanese Village.
Moreover, Attachment B to the ROD, “Summary of
Comments and Responses to Comments on the Final EIS,”
explicitly states: “Mitigation measures NV-19, NV-21, NV-
22, NV[-]23, NV-27, and TR-1 specifically apply to the
JAPANESE VILLAGE V. FTA 19
Japanese Village Plaza.” Japanese Village correctly points out
that a May 14, 2012 summary of the results of the board’s
April 26, 2012 action omits reference to the fact that
measures NV-19 and NV-27 apply to Japanese Village.
However, Appellees explain that this was simply a drafting
error.
If there were any doubt that Metro formally adopted the
proposed mitigation measures, those doubts were resolved on
December 15, 2015 when the FTA and Metro issued a Final
Supplemental Environmental Impact Statement. While the
primary goal of the FSEIS was to further analyze use of a
tunnel-boring machine along Lower Flower Street as ordered
by the district court, the FSEIS also corrects the earlier
drafting error and explicitly specifies that mitigation
measures NV-19, NV-21, NV-22, NV-23, and NV-27 apply
to Japanese Village. Japanese Village’s argument that Metro
has not adopted the corrected mitigation plan from 2015 is
unpersuasive because, as explained above, the most
reasonable reading of the record indicates that Metro adopted
the relevant mitigation measures even in 2012.
We also find unpersuasive Japanese Village’s argument
that Appellees failed adequately to analyze the effectiveness
of proposed mitigation alternatives. The March 28, 2012
expert study that Japanese Village asserts was overlooked by
Appellees estimates the reduction in noise and vibration that
proposed mitigation measures would provide.
In sum, we find that Appellees analyzed and adopted
additional mitigation measures for construction-related noise
and vibration in Japanese Village after the release of the
FEIS, and Appellees documented these measures in the June
2012 ROD. We conclude that the failure to see the need for
20 JAPANESE VILLAGE V. FTA
these mitigation measures at the time the FEIS was released
in January 2012, as evidenced by the fact that these measures
were analyzed and adopted later, did not violate NEPA.
b. Whether Relocation is a Permissible Mitigation
Measure
Notwithstanding the fact that Metro adopted measures to
mitigate construction-related noise and vibration, the parties
appear to agree that construction-related noise and vibration
may at least temporarily exceed federal standards in parts of
Japanese Village. Thus, it is quite possible that Appellees’
planned mitigation step of assisting residents and businesses
with temporary relocation will be necessary. Japanese Village
argues that relocation does not constitute mitigation as a
matter of law.
Japanese Village and Appellees both rely on the text of
the relevant NEPA regulation, which states:
Mitigation includes:
(a) Avoiding the impact altogether by not
taking a certain action or parts of an action.
(b) Minimizing impacts by limiting the degree
or magnitude of the action and its
implementation.
(c) Rectifying the impact by repairing,
rehabilitating, or restoring the affected
environment.
JAPANESE VILLAGE V. FTA 21
(d) Reducing or eliminating the impact over
time by preservation and maintenance
operations during the life of the action.
(e) Compensating for the impact by replacing
or providing substitute resources or
environments.
40 C.F.R. § 1508.20. Japanese Village argues that this list is
exclusive and that since relocation does not appear in
40 C.F.R. § 1508.20, it is not a valid mitigation measure.
Appellees argue that relocation could fall under subdivision
(e) of the regulation because relocation “provid[es] substitute
. . . environments” for displaced residents. Moreover,
Appellees argue, the regulation merely defines what
mitigation “includes.” Appellees argue that the regulation
permits mitigation measures that are not specifically
enumerated in the text.
The cases cited by Japanese Village do not directly
address whether relocation is a valid mitigation measure
under 40 C.F.R. § 1508.20 or NEPA generally. For example,
In re Katrina Canal Breaches Consolidated Litigation, No.
05-4192, 2011 WL 651946, at *4 (E.D. La. Feb. 11, 2011)
merely noted in dicta that one of the goals of a project was to
“avoid and minimize relocations and other impacts to local
residents and businesses to the maximum extent practicable.”
As Japanese Village notes, Friends of Richards-Gebaur
Airport v. FAA, 251 F.3d 1178 (8th Cir. 2001) dealt with the
relocation of airplanes, not people. Limerick Ecology Action,
Inc. v. U.S. Nuclear Regulatory Commission, 869 F.2d 719(3d Cir. 1989), also cited by Japanese Village, simply noted
that agencies should consider socioeconomic impacts of
federal projects, including the impact of relocation. Finally,
22 JAPANESE VILLAGE V. FTA
the district court in Monarch Chemical Works, Inc. v. Exon,
452 F. Supp. 493, 500 (D. Neb. 1978) ruled that a project
required an EIS in part because of “the environmental
consequences of the relocation of an entire community.”
None of these cases addresses the definition of “mitigation.”
Japanese Village also argues that in cases in which
relocation is necessary, the government must comply with the
Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (the “Relocation Act”),
42 U.S.C. §§ 4601 et seq. Japanese Village correctly points
out that courts have enjoined federal projects that fail to
comply with the Relocation Act. In a notice of errata filed
after Japanese Village filed its reply brief, however, Japanese
Village acknowledges that the EIS in the instant case actually
does consider the Relocation Act. For example, a page of the
Mitigation Monitoring and Reporting Program indicates that
“Metro shall provide relocation assistance and compensation
as required by the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970.” Japanese Village
does not claim that Appellees have violated the Relocation
Act, so any argument that the Project could be enjoined on
that basis does not apply.
Ultimately, we need not decide whether relocation can
ever be a valid mitigation measure under NEPA because
“NEPA does not require that mitigation measures completely
compensate for the adverse environmental effects.” Conner,
848 F.2d at 1450. The Supreme Court’s example in
Robertson is instructive:
[I]t would not have violated NEPA if the
Forest Service, after complying with the Act’s
procedural prerequisites, had decided that the
JAPANESE VILLAGE V. FTA 23
benefits to be derived from downhill skiing at
Sandy Butte justified the issuance of a special
use permit, notwithstanding the loss of 15
percent, 50 percent, or even 100 percent of the
mule deer herd.
Robertson, 490 U.S. at 351. In the instant case, regardless of
whether relocation is considered a mitigation measure or a
source of harm, Appellees would not have violated NEPA as
long as they took a hard look at each alternative and
discussed the extent to which adverse effects can be avoided.
Not only did Appellees examine various noise and vibration
mitigation measures, Appellees also went beyond NEPA’s
procedural requirements and committed to implementing the
mitigation measures that Japanese Village requested.
2. Operational Noise and Vibration
Japanese Village next argues that Appellees violated
NEPA by not specifically requiring “isolated slab track”
technology (“IST”) to mitigate operational noise and
vibration from trains passing below Japanese Village. For so-
called “Category 3” land uses such as the offices at Japanese
Village Plaza, federal vibration and noise guidelines for
“frequent” events such as a single train passing beneath are
75 VdB and 40 dBA respectively.5 The vibration and noise
guidelines for “occasional” events such as two trains passing
at once are 78 VdB and 43 dBA. Id. In a March 2011 report,
Appellees’ engineers found that without mitigation,
operational noise (but not vibration) could exceed these
levels.
5
“Category 3” land uses include “quiet office or institutional
buildings,” while “Category 2” land uses include residential buildings.
24 JAPANESE VILLAGE V. FTA
To address operational noise and vibration, in the January
2012 FEIS, Appellees’ mitigation plan included the following
measures:
In the vicinity of the Hikari Lofts and
Nakamura Tetsujiro Building, Metro shall
conduct engineering studies during final
design to verify initial estimates of GBN and
shall implement high compliance resilient
fasteners, floating slab trackbed, or other
appropriate measures as needed to eliminate
impacts and to reduce GBN below FTA
annoyance criteria. (NV-28)
In the vicinity of the offices at JVP and the
Broad Art Foundation Museum, currently
under construction, Metro shall conduct
engineering studies during final design to
verify initial estimates of GBN and shall
implement high compliance resilient fasteners
or other appropriate measures as needed to
eliminate impacts and reduce GBN below
FTA annoyance criteria. (NV-29)
At the time of the FEIS, Appellees did not expect that IST
would be necessary.
As with the construction-related noise and vibration
analysis, however, an engineering report issued after the FEIS
suggested that without IST, the noise levels at Japanese
Village Plaza would exceed federal limits. Japanese Village
argues that it was an abuse of discretion for the FTA to
“ignore the most recent and reasoned reports from its experts”
JAPANESE VILLAGE V. FTA 25
and allow the use of mitigation means other than IST without
an appropriate explanation.
Japanese Village’s argument is unpersuasive for two
reasons. First, “an agency need not supplement an EIS every
time new information comes to light after the EIS is
finalized.” Marsh, 490 U.S. at 373. In this case, the January
2012 FEIS accounted for the possibility that “other
appropriate measures” could be taken “as needed to eliminate
impacts and reduce GBN below FTA annoyance criteria.”
Second, as with the mitigation measures Japanese Village
requested to reduce construction-related noise and vibration,
Appellees specifically adopted IST for Japanese Village when
the Metro board approved the Project on April 26, 2012. The
meeting minutes reflect: “NV-27 – In the vicinity of the . . .
Japanese Village Plaza . . . Metro shall use resiliently
supported fasteners, isolated slab track technology, or other
appropriate measures as needed to eliminate impacts and to
reduce GBN below FTA annoyance criteria.” Attachment B
to the ROD states: “Mitigation measures NV-19, NV-21, NV-
22, NV[-]23, NV-27, and TR-1 specifically apply to the
Japanese Village Plaza.” Moreover, the December 15, 2015
Final Supplemental Environmental Impact Statement
explicitly states that mitigation measure NV-27, which
includes IST, applies to Japanese Village. Accordingly, to the
extent that Japanese Village complains about a lack of
implementation of IST (as opposed to a lack of discussion in
the FEIS), Japanese Village’s argument is now moot.
3. Subsidence
Japanese Village argues that Appellees’ plan to mitigate
potential building subsidence due to tunneling under Japanese
Village is not sufficiently detailed. Specifically, Japanese
26 JAPANESE VILLAGE V. FTA
Village argues that the FEIS should have explicitly required
that a 0.25 inch settlement in any building would trigger the
use of compensation grouting.
An EIS must “discuss mitigation measures, with sufficient
detail to ensure that environmental consequences have been
fairly evaluated.” S. Fork Band Council of W. Shoshone of
Nev. v. U.S. Dep’t of the Interior, 588 F.3d 718, 727 (9th Cir.
2009) (per curiam) (citation omitted) (internal quotation
marks omitted). In South Fork Band, we found an EIS
inadequate where it stated that “[f]easibility and success of
mitigation would depend on site-specific conditions and
details of the mitigation plan,” but the EIS omitted any
discussion of “whether the anticipated harms could be
avoided by any of the listed mitigation measures.” Id.Japanese Village argues that Appellees’ MMRP improperly
defers analysis in favor of future studies and site-specific
investigation.
In the instant case, the MMRP includes three pages of
measures designed to combat building subsidence. One of the
measures included in the MMRP states, in relevant part:
GT-1: While engineering designs are being
finalized, but before any construction, a
survey of structures within the anticipated
zone of construction influence shall be
conducted in order to establish baseline
conditions. . . . If assessments indicate the
necessity to proactively protect nearby
structures, additional support for the
structures by underpinning or other ground
improvement techniques shall be required
prior to the underground construction. Metro
JAPANESE VILLAGE V. FTA 27
shall require the construction contractor to
limit movement to less than acceptable
threshold values for vertical, horizontal, and
angular deformation as a performance
standard. These acceptable threshold values
shall be established such that the risk of
damage to buildings and utilities will be
negligible to very slight. For buildings, these
threshold values will be based on the
relationship of building damage to angular
distortion and horizontal strain consistent with
Boscardin and Cording (1989) and qualitative
factors including but not limited to the type of
structure and its existing condition. . . .
Additional data and survey information shall
be gathered during final design for each
building and utility main to enable assessment
of the tolerance of potentially affected
structures and utilities.
Another mitigation measure in the MMRP states:
GT-2: Ground improvement such as grouting
or other methods shall be required to fill voids
where appropriate and offset potential
settlement when excess material has been
removed during excavation. The criteria for
implementing grouting or ground
improvement measures shall be based on the
analysis described in mitigation measure GT-
1.6
6
The MMRP also proposes additional mitigation measures labeled
GT-3 through GT-6.
28 JAPANESE VILLAGE V. FTA
These mitigation measures are not specific to Japanese
Village, and Japanese Village argues that the lack of
specificity does not allow for adequate evaluation of the
measures’ impact.
While, at first glance, these mitigation measures seem to
lack detail, the manner in which Appellees worked to develop
the measures shows that Appellees sufficiently considered the
effectiveness of each proposal. After the FEIS was issued but
before the ROD was signed, Metro asked an expert to assess
the potential effects of underground construction on existing
Japanese Village buildings. The expert concluded that
without mitigation, three buildings in Japanese Village were
anticipated to have “moderate” to “very severe” damage due
to subsidence. The expert recommended that as “soon as
buildings show a settlement value approaching 0.25 inches,
compensation grouting would be activated under the building
in order to counteract tunneling settlement developing under
it.” The expert opined:
With the successful implementation of
compensation grouting, the settlement under
these buildings could be controlled to
acceptable levels. At the present level of
analysis, which is empirical settlement will
have to be limited to 0.25 inches for
“Negligible” damage, or 0.5 in. for “Slight”
damage, which by definition in practice non-
structural and cosmetically repairable.
This expert study, issued on April 9, 2012, was part of the
administrative record when Appellees issued their ROD in on
June 29, 2012. Unlike the EIS rejected in South Fork Band,
Appellees’ proposed mitigation measures, when viewed in
JAPANESE VILLAGE V. FTA 29
light of the analysis provided by Appellees’ expert, are
sufficient to allow for an evaluation of effectiveness. Thus,
we agree with the district court that Appellees’ analysis
satisfies the purpose of NEPA, “to ensure that agencies
carefully consider information about significant
environmental impacts.” N. Plains Res. Council, Inc. v.
Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011).
Our conclusion is also consistent with that of a recent case
cited in Japanese Village’s notice of supplemental authority.
In Protect Our Communities Foundation v. Jewell, 825 F.3d
571, 582 (9th Cir. 2016), we approved an EIS that included,
among other things, an “adaptive management plan” that
“provide[d] flexibility in responding to environmental
impacts through a regime of continued monitoring and
inspection.” While a mere promise to develop site-specific
mitigation measures in the future might not pass muster, “the
use of such a continuous monitoring system may complement
other mitigation measures, and help to refine and improve the
implementation of those measures as the Project progresses.”
Id.For the reasons set forth above, we conclude that
Appellees’ plan to mitigate subsidence was not arbitrary and
capricious, an abuse of discretion, or otherwise in violation of
the law.
4. Parking
Finally, Japanese Village argues that Appellees failed to
adequately consider the increased demand that the new Little
Tokyo transit station will place on Japanese Village’s existing
parking structure. Because the new transit station will not
provide additional parking and will be located only 16 feet
30 JAPANESE VILLAGE V. FTA
from Japanese Village’s parking structure, Japanese Village
worries that the parking used by its employees and customers
will be overrun by rail commuters. While Japanese Village
acknowledges that Appellees conducted parking studies, it
argues that Appellees’ analysis of the impact on Japanese
Village’s parking structure—as opposed to other off-street
and on-street parking—was insufficient.
Appellees rely on several portions of the record to support
their argument that Appellees’ parking analysis was adequate.
For example, Appellees point out that they created a 160-page
transportation analysis study, which included extensive
discussion about the impact on parking. Appellees also cite
the Station Planning Toolkit, attached as Appendix J to the
FEIS, which notes that 600 additional parking spaces are
expected in Little Tokyo as part of a new mixed-use
development. The portion of Appellees’ analysis that seems
most directly responsive to Japanese Village’s concern about
off-street parking is in a paragraph in Chapter 4 of the FEIS:
Typically, privately-operated parking lots are
considered transitional land uses that could be
developed by the owners for higher and better
uses. Several other privately-operated parking
lots and structures are located in the vicinity.
Loss of the current parking lot may cause an
inconvenience for users but it would not
represent a significant impact. Parking
demand in the area would be partially offset
by the increased public transit access
provided by the proposed project. However,
Little Tokyo residents and business owners
have indicated that parking spaces are
important community resources and that the
JAPANESE VILLAGE V. FTA 31
loss of this parking could negatively impact
the adjacent small businesses and the JANM
located across the street. The community is
concerned that this could, in turn, affect the
economic stability and ultimately the
character of the community. Therefore, prior
to construction of the alternative, Metro
would conduct an annual parking capacity
study of the Little Tokyo area during
construction to determine if there is sufficient
parking availability without these parcels.
Metro would also make a portion of the
Mangrove property available for valet
parking to offset the parking loss. This change
would not be a significant impact with respect
to displacements.
Another portion of the FEIS notes the “[p]ermanent
displacement of approximately 270 off-street parking spaces”
due to the Project, approximately 130 of which are in Little
Tokyo. Among other things, Appellees argue that because
surface parking is a “transitional land use,” long-term parking
availability may decline even in the absence of the Project.
There are no NEPA thresholds for determining the
significance of parking impacts, and Japanese Village has not
cited any cases in which a court has found an EIS inadequate
for failure to consider increased demand on an existing
parking structure. The two district court cases on which
Japanese Village relies arguably support Appellees’ position
that their analysis was adequate. Japanese Village criticizes
Appellees for “philosophiz[ing]” that improved transit service
may reduce the need for parking. However, in California
Coastal Commission v. U.S. Department of the Navy, 22 F.
32 JAPANESE VILLAGE V. FTA
Supp. 3d 1081, 1103 (S.D. Cal. 2014), which Japanese
Village cites, the court noted that “increased public
transportation in the downtown areas” may reduce demand
for parking. Moreover, the court found the Navy’s parking
analysis sufficient even though the Navy found that the
parking impact of the project at issue “may be unmitigable.”7
Id. In Crenshaw Subway Coalition v. Los Angeles County
Metropolitan Transportation Authority, No. CV 11-9603
FMO (JCx), 2015 WL 6150847, at *26 (C.D. Cal. Sept. 23,
2015), the court affirmed an agency determination, based on
a parking survey, that a light rail project “will not result in a
significant impact because the combination of both on- and
off-street parking provides enough total parking spaces to
meet the demand in the area.”8 Here, as noted above, Metro
plans to “conduct an annual parking capacity study of the
Little Tokyo area during construction to determine if there is
sufficient parking availability.”
The only appellate case that we have found analyzing a
parking problem even somewhat similar to the one at issue
here, Chelsea Neighborhood Associations v. U.S. Postal
Service, 516 F.2d 378, 387–88 (2d Cir. 1975), held that an
EIS was inadequate in part because it failed to discuss where
800 residents and 1,500 employees of a planned mixed-use
development would park. As explained above, however,
Appellees in the instant case provided at least some analysis
of the Project’s parking impacts and likely mitigating factors.
7
The plaintiffs in California Coastal Commission sued under the
Coastal Zone Management Act, 16 U.S.C. § 1451 et seq., not NEPA. Id.
at 1086.
8
Japanese Village cited Crenshaw in its June 20, 2016 Letter of
Supplemental Authorities.
JAPANESE VILLAGE V. FTA 33
We conclude that Appellees’ analysis of off-street parking
impacts is sufficient to pass muster under NEPA. “NEPA
imposes no substantive requirement that mitigation measures
actually be taken . . . .” Robertson, 490 U.S. at 353 n.16.
Appellees estimated the number of parking spaces that could
be lost in Little Tokyo due to the Project, but they also
estimated the number of spaces that they expect the area to
gain from other development. Appellees discussed how
increased use of public transit would at least partially offset
the need for additional parking. Appellees also discussed
possible mitigation measures.9 The record indicates that
Appellees took the requisite “hard look” at the parking
impacts of the proposed Project before it was approved.
IV. BONAVENTURE CLAIMS
Bonaventure argues that Appellees (1) failed to analyze
Closed-Face TBM construction as a reasonable alternative
tunneling method for the Lower Flower portion of the Project
in the FEIS; (2) failed to adequately analyze certain impacts
and impermissibly deferred certain mitigation analyses in the
FEIS; and (3) failed to prepare a Supplemental EIS to analyze
nighttime construction. We address these arguments in turn.
9
Japanese Village claims that Metro declined to adopt a proposed
mitigation measure, TR-1, which would provide valet service to people
denied access to Japanese Village’s parking structure, among other things.
As explained in the section above on noise and vibration mitigation
measures, Metro actually did adopt mitigation measure TR-1, but this
measure was inadvertently left out of the FEIS and ROD. The December
2015 FSEIS corrects this oversight.
34 JAPANESE VILLAGE V. FTA
A. Analysis of Closed-Face TBM on Lower Flower
“The existence of a viable but unexamined alternative
renders an environmental impact statement inadequate.”
Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024,
1038 (9th Cir. 2008) (quoting Alaska Wilderness Recreation
& Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir.
1995)). An “agency must look at every reasonable alternative
. . . ,” id., but an “agency need not . . . discuss alternatives
similar to alternatives actually considered, or alternatives
which are ‘infeasible, ineffective, or inconsistent with the
basic policy objectives for the management of the area,’” N.
Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir.
2006) (quoting Headwaters, Inc. v. Bureau of Land Mgmt.,
914 F.2d 1174, 1180–81 (9th Cir. 1990)). For alternatives that
are “eliminated from detailed study,” agencies must “briefly
discuss the reasons for their having been eliminated.”
40 C.F.R. § 1502.14(a)
1. Feasibility Determination in the FEIS
Appellees addressed Closed-Face TBM in the FEIS,
adopting the construction technique for some parts of the
Project but rejecting it as infeasible south of 4th Street
because of three impediments: (1) the “pocket track”
requirement, (2) the requirement to preserve the option of
building a 5th and Flower Street station in the future, and
(3) the presence of “tiebacks.” “[T]echnical determinations of
the agency, reflecting the application of its specialized
expertise, merit particular deference . . . .” See Protect Our
Cmtys., 825 F.3d at 581 (finding that agency reasonably
excluded alternative after determining it would present
“significant feasibility issues”); see also Westlands Water
Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 871 (9th Cir.
JAPANESE VILLAGE V. FTA 35
2004) (finding that agency has discretion to reject alternatives
deemed ineffective for accomplishing project’s goals).
Despite the assessment in the FEIS, Bonaventure argues
that Closed-Face TBM was a viable alternative on Lower
Flower because the three impediments identified by
Appellees had been eliminated before issuance of the FEIS.
The record, however, does not show that the requirement to
preserve the option of building another station in the future
had been eliminated or that the issue of tiebacks had been
resolved by the time Appellees issued the FEIS. Therefore,
we find no basis for concluding that Appellees were arbitrary
or capricious in finding that Closed-Face TBM was not
feasible on Lower Flower.
a. Pocket Track Requirement
A “pocket track” is a third track with connecting switches
for train storage and passing located between two main tracks
and is used to enable quick recovery of the transit system
when a train has to be taken out of service. Crossover tracks
allow trains traveling in either direction on either track to
move to the other track and continue traveling in the same
direction without stopping and can be used to allow trains to
bypass a stalled train or turn back in the opposite direction.
Neither a pocket track nor a crossover track can be
constructed using Closed-Face TBM.
Bonaventure argues that Closed-Face TBM became
feasible for Lower Flower once the pocket track requirement
south of 4th Street was eliminated from the Project in 2011.
Appellees contend that although the pocket track requirement
was eliminated, it was replaced with a crossover track
36 JAPANESE VILLAGE V. FTA
requirement, which would similarly preclude use of Closed-
Face TBM.
Although the record before us is somewhat ambiguous, it
seems that neither a pocket track nor a crossover track was a
Project requirement for Lower Flower by the time Appellees
issued the FEIS. The DEIS and SEA contemplate a pocket
track in the area of Lower Flower. But Metro’s April 2012
Draft Tunnel Study states that the pocket track requirement
was eliminated in December 2011 because “[c]rossovers in
the underground alignment would mitigate service delays and
a pocket or storage tracks could be used in adjacent project
locations . . . .” The FEIS itself states that a “pocket track,
which could also serve as a crossover, would be located
beneath Flower Street between 4th and 6th Streets,” but also
suggests that crossovers and pocket tracks “may not be
needed at all of [the listed] locations” and that the Flower
Street pocket track “is being considered for relocation as a
refinement to the Locally Preferred Alternative.”
Assuming that the pocket and/or crossover track
requirement had been eliminated or relocated, Appellees may
well have violated NEPA if they had relied solely on pocket
track incompatibility to find Closed-Face TBM infeasible on
Lower Flower. An agency “must look at every reasonable
alternative, with the range dictated by the nature and scope
of the proposed action.” Alaska Wilderness Recreation,
67 F.3d at 729 (emphasis added) (quoting Idaho
Conservation League v. Mumma, 956 F.2d 1508, 1520 (9th
Cir. 1992)). We need not decide that question, however,
because Appellees rejected the Closed-Face TBM as
infeasible on Lower Flower for two other reasons—namely,
the existence of tiebacks in the area and the Project
JAPANESE VILLAGE V. FTA 37
requirement to preserve the option of a future Flower/5th/4th
Street Station.
b. Flower/5th/4th Street Station
Bonaventure argues that Closed-Face TBM became
feasible in October 2010 when the Flower/5th/4th Street
station was dropped from the Project plan. This argument
ignores that the Project still required preservation of the
option to build a future Flower/5th/4th Street station. The
future station option—rather than the station itself—is
Metro’s stated reason for rejecting the Closed-Face TBM
alternative in the FEIS: “Using tunnel boring machine
construction would also create some challenges on the ability
of not precluding a 5th and Flower station as the alignment
would be changed from a box structure to separate bored
tunnels.”
Bonaventure suggests that the Project requirement for a
future station option was not adopted until April 26, 2012 and
was therefore not a legitimate reason to reject Closed-Face
TBM as infeasible in January 2012. The April 26, 2012 Metro
Board Meeting Minutes cited by Bonaventure list
“preserv[ing] the opportunity to install a future station north
of 5th and Flower Streets” as an approved amendment to the
Locally Preferred Alternative, but the Minutes do not actually
show when the amendment was approved. The January 2012
FEIS itself states that “the design of the Locally Preferred
Alternative would not preclude a station at 5th and Flower
Streets from being built as a possible future, separate
project.” Therefore, the record does not establish that the
requirement to preserve a future station option had been
eliminated from the Project before the FEIS was issued.
38 JAPANESE VILLAGE V. FTA
c. Tiebacks
Tiebacks are temporary stabilization systems made out of
steel that were typically left in place after basement
construction in the area. In the DEIS, Appellees note that
such “obstructions would potentially be problematic for TBM
excavation on Flower Street due to the shallow depths of the
tunnels, which is partly why cut and cover construction is
planned for this area.” In the FEIS, Appellees stated that use
of TBM “south of 4th Street would not be practicable due to
the need to remove tie-backs ahead of the tunnel boring
machine.”
Bonaventure’s only evidence that Appellees did not
consider tiebacks to be an issue is Metro’s April 25, 2012
Draft Tunnel Study, which post-dates the FEIS and examines
a low-alignment option that Metro developed in response to
public comment on the FEIS. The profile of the low-
alignment alternative examined in the Draft Tunnel Study “is
such that it is assumed to be below all of the existing tie-
backs based on available information,” but Metro notes that
the low alignment option “would generate additional
impacts” and “require other project changes.”
There is no pre-FEIS evidence to show that Appellees
believed that the tiebacks impediment on Lower Flower could
be overcome by changing the alignment of the tunnel along
Lower Flower. In fact, when Metro studied the issue in 2011,
it concluded that it was “not possible to miss the tiebacks
with a profile change” because the Lower Flower tunnel
segment was “not long enough to permit a tunnel profile with
the tunnel grades required to get down under the tiebacks.”
We affirm the district court’s finding that Bonaventure has
made no showing of that Appellees were arbitrary and
JAPANESE VILLAGE V. FTA 39
capricious in rejecting the use of Closed-Face TBM on Lower
Flower in the FEIS.
2. Effect of Post-FEIS Feasibility Admission
After the FEIS was published, Metro accepted public
comment and continued to examine options for extending the
use of Closed-Face TBM on Flower south of 4th Street.
During a series of community stakeholder meetings in March
2012, Metro discussed the possibility of extending the use of
Closed-Face TBM by “deepening the vertical alignment to
avoid the 4th Street piling system foundation; resulting in
lowering the 2nd/Hope Street Station,” and “continu[ing] the
TBM configuration from 4th Street to just south of 5th Street,
assuming no or minimum tie-back encountered.” In a Draft
Tunnel Study dated April 25, 2012, Metro stated that it had
determined that “it was potentially possible to extend the
TBM tunneling to 5th Street, subject to economic feasibility,”
and had presented the low-alignment option to Metro’s Board
in March 2012. On April 26, 2012, Metro’s Board adopted its
staff’s recommendation to extend the use of Closed-Face
TBM to 5th Street, if it could be done within the Project’s
budget.
We agree with the district court that Appellees’ post-FEIS
admission of feasibility does not establish that the FEIS was
procedurally deficient.10 “[T]he role of a court in reviewing
the sufficiency of an agency’s consideration of environmental
factors is . . . limited . . . by the time at which the decision
10
Moreover, we note that Appellees included analysis of Closed-Face
TBM at a deep alignment along Lower Flower in the December 2015
FSEIS. Even if Bonaventure’s claim had merit, this analysis would likely
render Bonaventure’s claim moot.
40 JAPANESE VILLAGE V. FTA
was made.” Vermont Yankee Nuclear Power Corp. v. Nat.
Res. Def. Council, Inc., 435 U.S. 519, 555 (1978).
Bonaventure argues that Vermont Yankee is distinguishable
because it involved a party seeking to reopen agency
proceedings that had been closed for over a year, while in this
case, Appellees admitted the feasibility of the alternative
before the FTA issued its record of decision.11 We are
cognizant, however, that “[a]dministrative consideration of
evidence . . . always creates a gap between the time the record
is closed and the time the administrative decision is
promulgated,” and if litigants could demand further analysis
each time “some new circumstance has arisen, some new
trend has been observed, or some new fact discovered, there
would be little hope that the administrative process could ever
be consummated in an order that would not be subject to
reopening.” Id. at 554–55 (quoting Interstate Commerce
Comm’n v. Jersey City, 322 U.S. 503, 514 (1944)); see also
Envtl. Def. Fund, Inc. v. Hoffman, 566 F.2d 1060, 1072 n.19
(8th Cir. 1977) (“[N]ot every addition to the EIS made in
response to comments is such as to require a formal
supplement to the EIS which must be processed in the same
fashion as a new EIS for to do so would make the NEPA
review process be one without end.”).
The “‘touchstone’ for courts reviewing challenges to an
EIS under NEPA ‘is whether an EIS’s selection and
discussion of alternatives fosters informed decision-making
and informed public participation.’” Westlands, 376 F.3d at
11
Bonaventure does not argue—and likely could not establish—that
Appellees’ post-FEIS resolution to extend the use of Closed-Face TBM
on Flower Street (budget permitting) constitutes a “substantial change”
requiring a supplemental EIS under 40 C.F.R. § 1502.9(c). Bonaventure
only challenges the sufficiency of the analysis in the FEIS.
JAPANESE VILLAGE V. FTA 41
872 (quoting California v. Block, 690 F.2d 753, 767 (9th Cir.
1982)). In this case, the process seems to have worked.
Appellees were not required to accept public comments after
publishing the FEIS. See 40 C.F.R. § 1503.1 (b) (“agency
may request comments on a final environmental impact
statement”) (emphasis added). Yet Appellees engaged in
continued dialogue with stakeholders and refined the Project
in response to community concerns. A finding that Appellees
were arbitrary and capricious in determining that Closed-Face
TBM was infeasible based solely on Appellees’ subsequent
admission that they were wrong is unlikely to foster informed
decision-making and public participation; rather it is likely to
discourage agencies from responding to post-FEIS public
comments in the future. See, e.g., Block, 690 F.2d at 771(noting that “[i]f an agency must file a supplemental draft EIS
every time any modifications occur, agencies as a practical
matter may become hostile to modifying the alternatives to be
responsive to earlier public comment”).
To the extent Bonaventure argues that Appellees’
eventual admission of feasibility establishes that Appellees
should have known Closed-Face TBM was technically
feasible on Lower Flower all along, the argument is a
substantive one and therefore “beyond the scope of our
review.” City of Carmel-By-The-Sea v. U.S. Dep’t of Transp.,
123 F.3d 1142, 1159 (9th Cir. 1997). As noted by the district
court, Bonaventure may have preferred that Appellees reach
a different conclusion in the FEIS, but that preference does
not establish that Appellees were arbitrary or capricious in
determining that the alternative was not feasible.
B. Adequacy of Analysis of Project Impacts and Mitigation
42 JAPANESE VILLAGE V. FTA
Bonaventure also challenges the sufficiency of the impact
analysis in the FEIS. “NEPA ‘does not mandate particular
results, but simply describes the necessary process that an
agency must follow in issuing an EIS.’” Westlands, 376 F.3d
at 865 (quoting Robertson, 490 U.S. at 349). “A court must
avoid passing judgment on the substance of an agency’s
decision. Its focus must be on ensuring that agencies took a
‘hard look’ at the environmental consequences of their
decisions.” Id. (quoting Robertson, 490 U.S. at 350).
Mitigation of environmental impacts must “be discussed in
sufficient detail to ensure that environmental consequences
have been fairly evaluated.” Carmel-By-The-Sea, 123 F.3d at
1154 (quoting Robertson, 490 U.S. at 353). An EIS, however,
“need not contain a ‘complete mitigation plan’ that is
‘actually formulated and adopted.’” Id. (quoting Robertson,
490 U.S. at 353).
1. Grade Separation Impact Analysis
Bonaventure is concerned about the impact of “grade
separation” between the concrete decking—which will cover
the trench created by cut and cover construction—and
existing sidewalk and driveway elevations. Bonaventure
argues that Appellees acknowledged the possibility of grade
separation in the FEIS, but then failed to quantify the possible
extent or analyze the impacts it may have on freeway and
garage access. The district court found that the FEIS satisfied
NEPA’s “hard look” requirement. We affirm.
The FEIS states that decking “may be either flush with the
existing street surface, or raised above the street surface with
Americans with Disabilities Act (ADA)-compliant ramps to
allow continued vehicle and pedestrian access.” The FEIS
JAPANESE VILLAGE V. FTA 43
also responds to public comments about the impacts of grade
separation:
• Any decking configurations would require
construction of ADA-compliant ramps
and accesses as well as modifications to
vehicular access points to the garages and
driveway along Flower Street
• Any decking configurations would be
designed to safely accommodate the
undercarriage and overhead clearances of
vehicles using the driveways, garages, and
loading docks
• Access to and from the bus stop, shuttle
area, and mid-block pedestrian crossing
would be accommodated in any decking
configuration.
NEPA regulations require “only brief discussion of other
than significant issues.” 40 C.F.R. § 1502.2 (b) (“Impacts
shall be discussed in proportion to their significance.”). “As
in a finding of no significant impact, there should be only
enough discussion to show why more study is not warranted.”
Id. Because Appellees explained that any “decking
configuration” would be designed to avoid significant
impacts, we are satisfied that no further discussion is
warranted. See Protect Our Cmtys., 825 F.3d at 583 (finding
NEPA’s “hard look” requirement satisfied where agency
“provided less analysis of noise effects in the EIS as
compared to other more significant or unmitigable
environmental impacts” because agency concluded that noise
effects could be effectively reduced).
44 JAPANESE VILLAGE V. FTA
Bonaventure claims that grade separation may result in
severe traffic congestion. Although the FEIS includes
extensive traffic impact analysis, the analysis does not touch
on grade separation. We find this to be consistent with
Appellees’ treatment of grade separation as not likely to
cause significant impacts; the traffic impact analysis need
only contain “a reasonably thorough discussion of the
significant aspects of the probable environmental
consequences.” Carmel-By-The-Sea, 123 F.3d at 1150(emphasis added). Bonaventure cites no evidence that grade
separation will result in significant traffic impacts; we have
no reason to conclude, therefore, that Appellees were required
to take a harder look at the issue.
Bonaventure also objects that Appellees violated NEPA
by improperly deferring the choice of decking configurations
and indicating that environmental factors would not be
considered in making the choice: “Decking configurations
will be determined during the final design phase of the
project, based on cost, schedule, and construction activity
phasing considerations.” Having determined that there would
not be significant environmental impacts from grade
separation, Appellees did not act arbitrarily and capriciously
in deferring the configuration decision or selecting the listed
decision criteria in the FEIS. Moreover, we note that by the
time the Project was approved, it included a design
refinement stating that “South of 4th Street, construction
decking shall be no higher than 10[ inches], if feasible, above
the existing grade, and flush with existing curb on the east
and west side of Flower Street with a maximum cross
gradient of 3%.”
JAPANESE VILLAGE V. FTA 45
2. Emergency Vehicle Access Impact Analysis
Bonaventure is also concerned about the impact of
construction on emergency vehicle access to adjacent
properties, including the Westin Bonaventure Hotel.
Bonaventure argues that the analysis of such impacts in the
FEIS is conclusory and does not explain how the impacts
would be mitigated. At first glance, some of the discussion of
construction impacts on emergency response in the FEIS
appears conclusory. For example, Metro states that it “would
not allow construction activities to impede safe evacuation of
the buildings or access for emergency personnel at any time.”
But the FEIS contains further explanation of how such goals
would be achieved.
Appellees acknowledge that “[s]treet lane closures
associated with construction activities could result in
increased response times for emergency services (e.g., police
and fire)” and that “[a]ny increase in response times for
emergency services would be a potentially adverse
construction impact.” But the FEIS also discusses mitigation
of the impact of street closures:
Prior to the initiation of localized construction
activities, a traffic management and
construction mitigation plan shall be devised.
The closure schedules in the construction
traffic plan shall be coordinated to minimize
impacts to residences, business, special
events, and traffic flow. . . . [The] plan shall
identify, for instance, proposed closure
schedule and detour routes, [and] construction
traffic routes . . . . Traffic flow shall be
maintained, particularly during peak hours, to
46 JAPANESE VILLAGE V. FTA
the degree feasible. Access to adjacent
businesses shall be maintained at all times
during business hours, and to residences at all
times.
Appellees also indicate that “access to businesses would
be maintained during business operating hours throughout
construction . . . . Metro would keep entrances and exits clear
of obstructions and would ensure that adequate exit routes
and safe zones are maintained at all times during construction
. . .” Mitigation Measure SS-15 provides that “Metro shall
keep sidewalks, entrances to buildings, lobbies, corridors,
aisles, doors, or exits that remain in use by the public clear of
obstructions.” Appellees acknowledge “[i]t may not be
possible to keep all vehicular entrances to garages open at all
times during operating hours,” but state that “Metro would
ensure that access is provided via other vehicular entrances
during those times as part of its goal to maintain access to
businesses. Metro would coordinate with garage owners to
ensure safety and minimize inconvenience.”
Appellees further explain that Metro would coordinate
with emergency services “to provide appropriate safety and
security of the public using the Metro system, employees, and
the surrounding communities.” Appellees state:
Metro would coordinate construction
activities with emergency service personnel to
ensure that emergency services and response
times are not impacted, as indicated in Section
4.15.4.112 of the Draft EIS/EIR. This
coordination has been included as mitigation
12
Neither party submitted or cited Section 4.15.4.1 of the DEIS.
JAPANESE VILLAGE V. FTA 47
measure number CN-2 in the Mitigation
Monitoring and Reporting Program for the
Locally Preferred Alternative (Chapter 8 of
this Final EIS/EIR).
And Mitigation Measure CN-2 states, “Early notification of
traffic disruption shall be given to emergency service
providers. Work plans and traffic control measures shall be
coordinated with emergency responders to prevent impacts to
emergency response times.” We are not persuaded that these
mitigation measures are insufficient.
Bonaventure argues that these mitigation measures
address only pedestrian access, not access for vehicles, but
Mitigation Measure TR-1 addresses “[t]raffic circulation
disruption” that “would occur during construction.”
Mitigation Measure SS-15 discusses safety and security
measures with respect to “public use of work areas involving
sidewalks, entrances to buildings, lobbies, corridors, aisles,
stairways, and vehicular roadways.”
Bonaventure argues that Appellees’ promise to maintain
access during “business operating hours” is not sufficient
because the Westin Bonaventure Hotel operates around the
clock. But elsewhere in the FEIS, Appellees note that “Metro
would maintain access to the hotel at all times during
operating hours . . . ,” and specifically explain that “business
operating hours” includes operating hours of “late-night
business such as the 24-hour gym.”
Bonaventure also argues that it is not helpful for
Appellees to provide access through “other vehicular
entrances” for the Westin Bonaventure Hotel because the
hotel’s only vehicular access is to Flower Street. We note that
48 JAPANESE VILLAGE V. FTA
Bonaventure does not maintain that the hotel has only a single
vehicular access point—Bonaventure’s statement merely
implies that all vehicular access points lead to Flower Street.
Bonaventure has not identified any particular impact that
would result from this circumstance—Metro could maintain
vehicular access to at least one of many Flower Street access
points during construction. Even in the unlikely event that
hotel has only a single vehicular entrance, nothing in the
FEIS suggests that Metro would not maintain access to that
entrance at all times—it clearly states that “[a]ccess to
adjacent businesses shall be maintained at all times during
business hours.”
Bonaventure claims that providing early notification to
emergency service providers does not address the loss of
access caused by the Project. As discussed above, Appellees
have explained how they will maintain access for emergency
vehicles, albeit potentially more limited access than usual.
Early notification to emergency services providers would
help to prepare the emergency service providers to navigate
the more limited access and thereby mitigate the impact of
the Project.
Therefore, we affirm the district court’s finding that the
FEIS includes reasonably thorough discussion of the impact
on access for emergency vehicles.
3. Deferred Monitoring and Mitigation Measures
Bonaventure contends that Appellees have impermissibly
deferred “myriad studies, surveys and mitigation plans” in
violation of NEPA. NEPA requires discussion of “mitigation
of reasonably likely impacts at the outset.” S. Fork Band,
588 F.3d at 727. The district court found that these mitigation
JAPANESE VILLAGE V. FTA 49
measures were not arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with the law. We
affirm.
Bonaventure argues that Mitigation Measures GT-1, NV-
2, TR-1, CN-3, and NV-13 are too vague because each
measure improperly call for measures that “shall” be
developed later:
• GT-1: “acceptable threshold values shall
be established such that the risk of
damage to buildings and utilities will be
negligible to very slight.”
• NV-2: “vibration monitoring plan shall be
developed.”
• TR 1: “traffic management and
construction mitigation plan shall be
devised.”
• CN-3: “[t]raffic management and
construction mitigation plan shall be
developed.”
• NV-13: “construction mitigation plan
shall prohibit noise levels generated
during construction from exceeding the
FTA construction noise criteria.”
The record shows, however, that in addition to proposing
adaptive management plans, Appellees studied baseline
conditions and conducted in depth analysis of the subsidence,
vibration, traffic management, and noise impacts of the
50 JAPANESE VILLAGE V. FTA
Project. The FEIS includes lengthy sections describing the
impacts on “Geotechnical/Subsurface/Seismic/Hazardous
Materials,” “Noise and Vibration,” and “Transportation.”
Furthermore, the challenged mitigation measures
themselves describe how the impacts will be monitored and
what Appellees intend to do in response:
• GT-1 explains that the subsidence
monitoring threshold is tied to “the
relationship of building damage to angular
distortion and horizontal strain consistent
with Boscardin and Cording (1989) and
qualitative factors including but limited to
the type of structure and its existing
condition.”
• NV-2 calls for “pre-construction surveys
of all buildings within 21 feet of vibration
producing construction activity” and
states that any damage will be repaired.
• TR-1 describes measures to notify and
coordinate with community members in
scheduling construction.
• CN-3 states that the traffic management
and construction mitigation plans will be
developed “in coordination with
community” and that “[c]rossing guards
and other temporary traffic controls shall
be provided . . . as appropriate to maintain
traffic flow during construction.”
JAPANESE VILLAGE V. FTA 51
• NV-13 involves monitoring using “FTA
construction noise criteria” and listing a
variety of mitigation techniques to be used
as needed in response to monitoring,
including noise barriers, alarms/warning
procedures, and mufflers.
As in Protect Our Communities, these mitigation
measures describe “adaptive management” plans that would
provide “flexibility in responding to environmental impacts
through a regime of continued monitoring and inspection.”
825 F.3d at 582; see also City of Sausalito v. O’Neill,
386 F.3d 1186, 1210–11 (9th Cir. 2004) (finding “hard look”
requirement satisfied where FEIS included detailed analysis
of traffic concerns and specifically provided “for ongoing
traffic monitoring and a ‘Traffic Management Plan’ to set
‘specifications on construction traffic scheduling, proposed
haul routes, construction parking, staging area management,
visitor safety, detour routes, and speed controls”).
C. Supplemental EIS for Nighttime Construction
According to Bonaventure, Appellees were required to
prepare a supplemental EIS because Metro applied for noise
ordinance variances to accommodate nighttime construction
on Lower Flower after the issuance of the FEIS. The district
court found that no supplemental EIS was required. We
affirm.
A supplemental EIS is required if (a) the “agency makes
substantial changes in the proposed action that are relevant to
environmental concerns;” or (b) there are “significant new
circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts.”
52 JAPANESE VILLAGE V. FTA
40 C.F.R. § 1502.9(c). A supplemental EIS is not required if
“(1) the new alternative is a ‘minor variation of one of the
alternatives discussed in the draft EIS,’ and (2) the new
alternative is ‘qualitatively within the spectrum of alternatives
that were discussed in the draft [EIS].’” Russell Country
Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1045 (9th Cir.
2011) (quoting published guidance from Council for
Environmental Quality publications). Like EIS compliance,
an agency’s decision on whether to supplement is controlled
by the “arbitrary and capricious” standard. See Marsh,
490 U.S. at 375–76.
Section 41.40 of the Los Angeles Municipal Code
prohibits any construction during certain nighttime hours
without a permit. On April 16, 2012, Metro applied to the
Board of Police Commissioners for nighttime noise variance
“to accommodate the construction of necessary utility
relocations” along Lower Flower and in several other Project
areas. Metro requested permission to work from 9:00 pm to
7:00 am, Monday through Friday, and 6:00 pm to 7:00 am,
Saturday through Monday. Id. The application indicated that
work would start on June 1, 2012 and take approximately 1.5
years. “Understanding that the variance could not be granted
for that length of time,” Metro requested a six-month permit,
indicating that it would request periodic extensions. Metro
listed several activities as within the scope of work, such as
surveying and traffic control, sawcutting, trenching and
shoring, infrastructure installation, backfilling, and paving.
Bonaventure argues this application is a substantial change
because decking and pouring concrete are the only nighttime
activities discussed in the FEIS—not sawcutting, trenching,
shoring, or infrastructure installation. Bonaventure also
argues that FEIS only contemplated nighttime construction
JAPANESE VILLAGE V. FTA 53
over short, limited period, while the requested permits would
allow for 24/7 construction over 1.5 years.
The Lower Flower variance application does not imply
new plans for nighttime construction. The FEIS and DEIS
already indicated that utility relocations might require
“complex construction sequences and schedules,” lasting up
to four months on each two-block segment, but that “[s]treet
closures would generally be limited to nighttime, weekend,
and/or off peak closures and must be authorized by the local
jurisdiction.” The FEIS notes that the Municipal Code
prohibits nighttime construction without a variance and states
that the contractor would “be responsible for consistency with
the goals of the applicable local ordinance as it applies to all
equipment to the job or related to the job.” These statements
are consistent with the application for a variance for
nighttime construction associated with utility relocation that
Metro submitted for Lower Flower. Furthermore, the four
variance applications in the administrative record all list the
same construction activities for the same time period, which
suggests that Metro was seeking blanket authorization for
utility relocation activities—not that utility relocation would
go on continuously for 1.5 years in any one particular area.
Moreover, the FEIS already accounts for the noise and
light impacts of possible nighttime construction: “This
analysis considered both daytime and nighttime construction
activities using the procedures and criteria for a general noise
assessment presented in Chapter 12 of the FTA guidance
manual (USDOT 2006).” Noise measurements were obtained
at the Westin Bonaventure—including 24-hour noise
measurements. And mitigation techniques, such as “[h]igher
performance mufflers” for nighttime construction “near
sensitive land uses” were discussed. The FEIS indicated that
54 JAPANESE VILLAGE V. FTA
“nighttime lighting would predominantly consist of security
lighting, and light would be directed on-site,” and therefore
would not cause “adverse or significant” impacts. Even if the
variance application were to constitute a substantial change
in the Project, no Supplemental EIS would be required
because the change would not affect the environment “to a
significant extent not already considered.” Marsh, 490 U.S.
at 374; see also Russell Country Sportsmen, 668 F.3d at 1049(finding no supplementation required because there was “very
little reason to believe the modified travel plan will have
environmental impacts that the agency has not already
considered”).
V. CONCLUSION
For the reasons set forth above, the district court’s grant
of summary judgment in favor of Appellees on all claims is
AFFIRMED.
IT IS SO ORDERED.