Professional Documents
Culture Documents
Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
JUN 20 2002
PATRICK FISHER
TENTH CIRCUIT
NICOLE DAVIS; BRAD DAVIS;
KENT PLAYER; MATT ARNETT;
RICK TAYLOR; JAN SHARP;
DENNIS DALLEY,
Plaintiffs-Appellants,
No. 01-4129
v.
NORMAN Y. MINETA, Secretary,
Department of Transportation; MARY
E. PETERS, Administrator, Federal
Highway Administration; DAVID
GIBBS, Division Administrator,
Federal Highway Administration, Utah
Division; THOMAS R. WARNE,
Executive Director, Utah
Department of Transportation,
Defendants-Appellees.
Clerk
South; the construction of a new bridge over the Jordan River at 11400 South; and
the widening and extension of existing 11400 South.
and widening of 11400 South will create a new segment of five-lane highway
where no road currently exists. A portion of the expanded 11400 South will
affect publicly-owned parkland and will require the displacement or demolition of
several historic structures.
As currently envisioned, the Project will proceed in two phases. Phase I
includes the construction of the 11400 South interchange at I-15 and I-15
improvements. Phase II involves the expansion and extension of 11400 South,
including the construction of a new bridge across the Jordan River. While
completion of Phase I appears to involve a time horizon of approximately three
to four years, there is no definitive timetable established for the completion of
Phase II.
The proponents of the Project are the Utah Department of Transportation
(UDOT), and Draper, Sandy and South Jordan. Due to its potential effects on
the environment, parkland and historic structures, the Project implicates both the
NEPA, and 4(f). The Federal Highway Administration (FHWA) was the
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federal agency responsible for approving the Project and for preparing the
environmental analysis required by NEPA. However, the EA here was initially
prepared by Horrocks Engineers under contract with Sandy City and then
reviewed and adopted by the FHWA. The Secretary of Transportation was
responsible for approving the Project based on the 4(f) analysis.
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I. Standard of review
This court reviews a district courts grant or denial of a preliminary
injunction for an abuse of discretion.
955 (10th Cir. 2001). A district court abuses its discretion where it commits
a legal error or relies on clearly erroneous factual findings,
Prairie Band ,
253 F.3d at 1242, or where there is no rational basis in the evidence for its ruling.
Utah Licensed Beverage Assn v. Leavitt
We examine the district courts underlying factual findings for clear error, and its
legal determinations
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Id. 1501.4(b).
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based on the EA, that no EIS is needed because its action would not significantly
affect the environment, it may then prepare a FONSI.
Furthermore, the record establishes here that the defendants prejudged the
NEPA issues. This prejudgment diminishes the deference owed to the federal
defendants in our review of their decision to issue a FONSI rather than an EIS.
The addendum to the Engineering Services Agreement between Sandy City and
Horrocks Engineers (Horrocks), a consultant on the Project, required Horrocks to
distribute an EA no later than October 25, 1999, and further stipulated that a
FONSI be signed and distributed by FHWA by February 25, 2000. In other words,
Horrocks, the consultant employed to prepare the draft EA/4(f) for FHWAs
review, was contractually obligated to prepare a FONSI and to have it approved,
signed and distributed by FHWA by a date certain. The decision whether to
prepare a FONSI should be based on the EA, of course, not the other way around.
See 40 C.F.R. 1501.4(c), (e). Horrocks thus had an inherent, contractuallycreated bias in favor of issuance of a FONSI rather than preparation of an EIS.
See, e.g., Metcalf v. Daley , 214 F.3d 1135, 1143-44 (9th Cir. 2000).
We discern two ways in which this prejudgment is attributed to the federal
decisionmakers in this case, who were not themselves parties to the Engineering
Services Agreement. First, the district court found, and the record establishes,
that FHWA was involved throughout the NEPA process, Davis, 148 F. Supp. 2d
at 1218, thus implicating FHWA directly in Horrocks rush to judgment on the
environmental issues. The minutes of a meeting held October 12, 1999, between
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representatives of Sandy City, Horrocks and the federal defendants, indicate that
FHWA wants to advance the environmental documents and not issue a FONSI
until they are checked against the new WFRC model. 4 Significantly, this
meeting occurred before the EA had been submitted to FHWA for formal review
and approval. Additionally, the record contains a memo to UDOTs project
manager dated August 7, 2000, including FHWAs recommendation to proceed
with public review of the revised EA/4(f) document, subject to certain revisions.
FHWA wanted the FONSI, which had already been prepared, removed from the
document to be circulated for public review. Id. This suggests that a FONSI
had already been prepared prior to an evidently pro forma public opportunity to
comment on the revised EA. FHWAs own regulations suggest that a FONSI not
be prepared until FHWA has reviewed the publics comments concerning the EA.
23 C.F.R. 771.121(a).
Second, the record establishes that the FHWA failed to conduct a sufficient
independent review of Horrocks work to insulate itself from the biases toward a
FONSI reflected in Horrocks draft EA. The district court concluded that FHWA
made an independent investigation before issuing a FONSI. Its conclusion rests
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on two facts: (1) that FHWA was involved throughout the NEPA process, and
(2) that it rejected the initial EA/4(f) document prepared by Horrocks. Davis,
148 F. Supp. 2d at 1218.
However, as will be seen, the EA/4(f) prepared in this case is insufficient
in many particulars. Although FHWA rejected an initial draft of the EA/4(f), this
did not result in the correction of the many problems plaintiffs raise with the
FONSI. This is true even though many of these problems were brought to
FHWAs attention. Defendants employed a law firm to assist with draft responses
to comments received concerning the EA/4(f) documentation. The law firm wrote
a memorandum to defendants which is highly critical of the EA/4(f), echoing
many of the complaints plaintiffs have raised in this appeal. For example, it notes
that [t]he Project EA addresses alternatives to the Project in a conclusory
manner, and addresses only the preferred alternative and the no project alternative
as alternatives subject to full analysis. It further notes that the EA does not
adequately address phasing issues, in spite of frequent public comments on the
issue. The memo warns that the failure to discuss alternatives adequately
appears to pose an appreciable litigation risk. The FHWA received a copy of
the very critical evaluation of the EA and even agreed with many of the
comments. Yet, in spite of this dire warning and critical appraisal of the
deficiencies of the EA, FHWA did not fix the problems identified with the EA.
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1549. This inquiry requires the district court to examine whether the Secretary
could have reasonably believed that in this case there are no feasible alternatives
or that alternatives do involve unique problems.
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decision was based on a consideration of the relevant factors and whether the
Secretary made a clear error of judgment.
reviewing court must conduct a careful and searching inquiry into the facts;
however, once it becomes satisfied that the Secretary took a hard look at the
relevant factors, the court should not substitute its judgment for that of the
agency. Id. at 1551.
Finally, the reviewing court asks whether the Secretary followed the
necessary procedural requirements in reaching his decision.
Id. at 1549.
This court reviews the district courts conclusions on all three of these issues
de novo , according no deference to the district courts conclusions.
II.
Id.
decision of the district court and the underlying agency decisions, we move now
to the merits of this appeal. As mentioned earlier, we examine four factors to
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purpose); cf. Sierra Club v. Marsh , 872 F.2d 497, 500 (1st Cir. 1989) (stating
harm NEPA seeks to prevent is complete when agency makes decision without
considering information NEPA seeks to place before decision-maker and public);
Comm. to Save the Rio Hondo v. Lucero,
Plaintiffs must still make a specific showing that the environmental harm
results in irreparable injury to their specific environmental interests. They have
done so here. Plaintiffs property will be directly impacted by this Project and the
size and scope of this Project supports a conclusion that the injury is significant.
Amoco Prod. Co. v. Village of Gambell
See Marsh,
872 F.2d at 504 (The difficulty of stopping a bureaucratic steam roller, once
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Here again, we are faced with defendants assertion that the asserted
harm is not imminent because it will occur only during the construction of Phase
II. If construction were allowed on Phase I, however, there is a real risk that the
4(f) analysis would be skewed toward completion of the entire Project, with the
attendant harms we have noted. This risk is sufficient to make the alleged harm
imminent.
8
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B. Balance of harms
We must next balance the irreparable harms we have identified against the
harm to defendants if the preliminary injunction is granted. Defendants allege
that significant financial penalties will be incurred by UDOT if the Project is
delayed. Defendants rely on the affidavit of Angelo Papastamos, UDOTs Senior
Project Manager. This affidavit describes costs that will be incurred by UDOT
based on the delays experienced and anticipated by this litigation. However, it
appears that many of these costs may be self-inflicted. As we have previously
concluded, the state entities involved in this case have jumped the gun on the
environmental issues by entering into contractual obligations that anticipated a
pro forma result. In this sense, the state defendants are largely responsible for
their own harm. Cf. Pappan Enters., Inc. v. Hardees Food Sys., Inc., 143 F.3d
800, 806 (3d Cir. 1998) (stating, in context of franchise contract dispute, that
[t]he self-inflicted nature of [defendants] harm . . . weighs in favor of granting
preliminary injunctive relief).
On this record, it appears that the environmental harms from proceeding
with the Project without adequate NEPA review outweigh the legitimately
incurred costs to defendants resulting from an injunction.
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C. Public interest
Conflicting public interest values are involved here. Obviously, the public
interest does not favor payment of construction-related penalties from the public
fisc, and it does favor the construction of much-needed highways. On the other
hand, plaintiffs assert a strong public interest in NEPA compliance.
This is not a case in which any adverse effect upon the environment
would appear to be negligible as compared with the obvious need for correcting
a dangerous highway intersection.
Brinegar , 517 F.2d 917, 918 (6th Cir. 1975). First, the environmental dangers at
stake in this case are serious, particularly where the effect on parkland and
historic structures protected by 4(f) is concerned. Second, the proposed
highway construction has not yet begun, and so we are not confronted with
equities in favor of completion of a partially-completed project.
We conclude that the public interest associated with completion of the
Project must yield to the obligation to construct the Project in compliance with
the relevant environmental laws. On balance, the public interest favors
compliance with NEPA and 4(f).
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burden of showing that FHWAs decision not to prepare an EIS was arbitrary and
capricious. Boomer Lake, 4 F.3d at 1555.
In this case, FHWAs own regulations implementing NEPA assist plaintiffs
in meeting their burden of proof. The Council on Environmental Quality (CEQ)
regulations require agencies to determine whether a project is one that normally
requires an EIS. 40 C.F.R. 1501.4(a)(1). Pursuant to this requirement, FHWA
has adopted a regulation providing examples of actions that normally require an
EIS. One of the actions that the FHWA determined normally required an EIS
is [a] highway project of four or more lanes on a new location. 23 C.F.R.
771.115(a)(2). That, of course, precisely describes a portion of the Project:
the expansion of 11400 South from 700 West to 1300 West.
We have held, it is true, that regulations of this type do not inevitably
create a mandatory duty to prepare an EIS. Boomer Lake, 4 F.3d at 1554-55. The
fact that there is no mandatory duty, however, does not mean that this regulation
has no effect at all. This FHWA regulation presumes that an EIS will normally be
prepared for highway projects of four or more lanes on a new location, thereby
imposing on the FHWA the burden of establishing why that presumption should
not apply in this particular case. If FHWA arbitrarily and capriciously failed to
follow its own regulation, its decision must be reversed.
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private landowner is similarly disqualified. The fact that these properties may
eventually be transferred to public ownership does not qualify them as 4(f)
properties. See Natl Wildlife Fedn v. Coleman, 529 F.2d 359, 370 (5th Cir.
1976). The remaining portion of Jordan River Parkway, however, currently
owned by the State of Utah and designated as a public park, does qualify as 4(f)
property. 9
Plaintiffs assert that the Project will affect the publicly-owned portion of
the Jordan River Parkway. Our review of the record indicates that a part of the
publicly-owned portion of this parkland will be directly impacted and likely even
directly taken by the extension of 11400 South across the Jordan River. The
FHWA believed the direct and cumulative impacts on publicly-owned parkland
were sufficiently serious to apply a 4(f) analysis to the park, and we will follow
its lead on this point.
The State of Utah acknowledged that the Jordan River Parkway falls
within the purview of 4(f) and 6(f) protections for any conversion of uses from
public recreation to nonpublic recreation uses. It further indicated that the
Division of Parks and Recreation has assumed jurisdictional authority over these
Parkways. See Admin. Rec. at 1442 (letter from Tharold Green of State of Utah
Department of Natural Resources). This land is further designated as parkland on
the South Jordan City Parks and Recreation Master Plan. None of the parties
dispute that the publicly-owned portion of the Jordan River Parkway is parkland
within the meaning of 4(f). Accordingly, we accept as undisputed that this
Project will impact parkland protected by 4(f).
9
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Historic structures qualify for 4(f) consideration if they are either on the
National Register of Historic Places, or eligible for inclusion on the National
Register. 23 C.F.R. 771.135(e). There are 29 historic properties located within
the 11400 South APE; however, four of these are not recommended for inclusion
on the National Register. The remaining 25 properties are subject to 4(f)
analysis.
Once the property is determined to be 4(f) property, the Secretary of
Transportation can approve the use of such publicly-owned parkland or historic
sites for highway construction only if there is no prudent and feasible
alternative to using that land, 49 U.S.C. 303(c)(1), and only after the Secretary
has performed all possible planning in the project to minimize harm to the
park . . . or historic site resulting from the use. Id. 303(c)(2).
C. Specific problems with defendants 4(f) and EA analysis under
NEPA
1. Scope of Project
The EA/4(f) prepared in this case is inadequate for three reasons. First, it
fails to consider reasonable alternatives to the Project. Second, it contains an
inadequate discussion of the Projects impacts. Finally, the treatment of the
issues is too vague, incomplete and inadequate to allow the decision-maker to
decide if an EIS is required.
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Plaintiffs argue that the EA/4(f) defines the scope of the Project so
narrowly as to eliminate reasonable alternatives. Plaintiffs had argued for
consideration of alternatives that would avoid altogether the construction of an
additional crossing over the Jordan River at 11400 South. The district court,
discussing this issue as it relates to the 4(f) analysis, stated:
Because the articulated purpose and need for the Project is, in part,
to provide another crossing point of the Jordan River, such an
alternative [avoiding another Jordan River crossing] would be per se
unfeasible and imprudent because any alternative addressing the
purpose and needs articulated for the Project would necessarily have
to cross the Jordan River Parkway.
Davis, 148 F. Supp. 2d at 1219.
While it is true that defendants could reject alternatives that did not meet
the purpose and need of the project, Boomer Lake, 4 F.3d at 1550, they could not
define the project so narrowly that it foreclosed a reasonable consideration of
alternatives. Colo. Envlt. Coalition v. Dombeck, 185 F.3d 1162, 1174-75
(10th Cir. 1999); Simmons v. United States Army Corps of Engrs, 120 F.3d 664,
669 (7th Cir. 1997). Although the scope of the Project certainly contemplates
additional road capacity across the Jordan River, we do not believe that a fair
reading of the Project purposes and needs requires that this additional capacity
necessarily be achieved by extending 11400 South across the Jordan River.
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describe those alternatives). Plaintiffs contend that this analysis was deficient for
several reasons:
a. Additional Jordan River crossing
Plaintiffs argue that defendants should have given more detailed
consideration to alternatives involving the extension or expansion of other roads
that cross the Jordan River. In particular, they claim the crossings at 12300 and
10600 could be expanded as an alternative to constructing a new crossing at
11400 South. The EA summarily rejected various piecemeal options involving
added lanes to other highways in the area. Each option was rejected because
standing alone it would not meet the purpose and need of the Project.
FHWA relies on several traffic studies that purport to show that reasonable
traffic volume can only be achieved by creating at least four lanes on 11400
South. Those studies, however, provide an insufficient basis for failing to
consider additional lane configurations at existing crossings or other locations as
a means of meeting the projects purpose and need.
Those studies, and particularly the Fehr & Peers report to USDOT dated
September 7, 1999, show the obvious that construction of a four lane crossing
over the Jordan River at 11400 South will increase traffic capacity in the area and
will improve traffic flows. But that is not the test for whether alternatives should
be studied in an EA. Tellingly, that Report also reveals that substantial traffic
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c. Cumulative alternatives
In addition to the possibility of expanding existing roads, options involving
Transportation System Management (TSM) and mass transit were eliminated from
study under the EA. The EA/4(f) rejected these options because, standing alone,
they would not meet the purpose and need of the Project. However, no effort was
made to consider TSM and mass transit together and/or in conjunction with
alternative road expansion as a means of meeting Project goals. 10 This represents
one of the most egregious shortfalls of the EA. According to the various reports
in the record, TSM could significantly contribute to traffic management in the
area and mass transit in any number of iterations is apparently under active
consideration in this area by a number of jurisdictions involved. Although mass
Additionally, the EA/4(f) opined that mass transit was not a feasible
alternative, in part because there was only the potential for commuter rail in the
area. This vague statement without some analysis of the likelihood or feasibility
of realizing that potential, was not an adequate one for rejecting mass transit as
part of a cumulative solution to the purpose and need identified in the EA/4(f).
10
For example, this conclusion did not take into account a letter from the
Utah Transit Authority (UTA) to Horrocks dated August 3, 1999. The letter
begins by informing Horrocks that a development in the South Salt Lake County
Transit Corridor Studies has arisen that your firm should be aware of as it
proceeds through the DEIS process. The letter states that UTA has been
requested to explore the possibility of a light rail extension paralleling the
I-15/300 East corridor from its current terminus point to 14600 South and notes
that this alignment do[es] warrant further consideration. Id. The letter suggests
that light rail is more than a speculative possibility. It states that a feasibility
study has concluded that light rail is a viable alternative in South Salt Lake
County.
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transit in the area is apparently not a sure thing, neither is there anything in the
record to establish that it is such a remote, speculative, impractical or
ineffective alternative that it did not need to be studied as a viable alternative in
the EA. There are no cost studies, cost/benefit analyses or other barriers
advanced that would warrant a conclusion that mass transit alternatives are
unreasonable, standing alone or in conjunction with other alternatives.
Again, because of the need of FHWA to engage in all possible planning,
the failure of the EA carefully to consider mass transportation, particularly in
combination with other alternatives, is not justified. [A]ll possible planning
requires consideration of whether reasonable resources currently planned for
extension of 11400 South across the Jordan River might instead be effectively
directed toward expansion of mass transit and other traffic management strategies
that could adequately meet the needs and purpose of the Project in a way that
avoids the adverse impact on parkland or historic structures.
d. Conclusion
The EA/4(f) does not contain an adequate discussion of alternatives. Many
alternatives were improperly rejected because, standing alone, they did not meet
the purpose and need of the Project. Cumulative options, however, were not
given adequate study. Alternatives were dismissed in a conclusory and
perfunctory manner that do not support a conclusion that it was unreasonable to
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consider them as viable alternatives in the EA. As a result, only two alternatives
were studied in detail: the no build alternative, and the preferred alternative.
FHWA acted arbitrarily and capriciously in approving an EA/4(f) that does not
provide an adequate discussion of Project alternatives.
3. Significant impacts
We conclude that the EA/FONSI discussion of the impacts expected to
result from the Project is also inadequate.
a. Induced growth
The problem of induced growth arises fairly frequently in NEPA cases.
See Daniel R. Mandelker,
of Transp. , 123 F.3d 1142, 1162 (9th Cir. 1997). A conclusory statement that
growth will increase with or without the project, or that development is
inevitable, is insufficient; the agency must provide an adequate discussion of
growth-inducing impacts.
. Admin. Rec. at
7786 (emphasis added). The EA/4(f) acknowledges, however, that the rate of
development on lands east of the Jordan River may increase as a result of the
project. Id. 11 The district court accepted the agencys conclusion that the
Project would not significantly increase the rate of growth.
However, in a letter dated September 19, 2000, commenting on the draft
EA/4(f), the Environmental Protection Agency (EPA) opined that [e]nhanced
transportation facilities will generate or enhance economic activity and
development, and that related federal, state, and private actions may result in
significant environmental impact.
impacts may not have been identified and assessed . . . [it] believes there is not a
reasonable basis for a finding of no significant impact (FONSI) for the preferred
alternative. It does not appear these concerns were ever adequately addressed in
the EA. The EPAs viewpoint on this issue is undeniably relevant. While it is
true that NEPA requires agencies preparing environmental impact statements to
consider and respond to the comments of other agencies, not to agree with them,
Custer County Action Assn , 256 F.3d at 1038, it is also true that a reviewing
court may properly be skeptical as to whether an EISs conclusions have a
The district court stated that it could even take judicial notice of the
intense and rapid growth in the project
area. Judicial notice is only appropriate
where the issues are not subject to reasonable dispute, see Fed. R. Evid. 201(b).
The factual issues surrounding growth here are the subject of a considerable
amount of dispute between the parties.
11
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substantial basis in fact if the responsible agency has apparently ignored the
conflicting views of other agencies having pertinent expertise.
United States Army Corps of Engrs
Sierra Club v.
growth in this area is anticipated through 2020, albeit at a lesser rate than has
existed since 1990. The graph, however, contains no discussion or comparison of
the local effects in the area directly impacted by this Project of induced growth
caused by the extension of 11400 South as compared to a no-build alternative or
the use of other alternatives.
Defendants also point to a map in the record that shows regional
development density as of the year 2000. That map, however, merely confirms
plaintiffs claim that the 11400 South corridor remains in large part an island of
open space in a sea of development. Defendants refusal to study the possibility
that the relatively unspoiled nature of this local area might be due, at least in part,
to the present lack of a major roadway through it is arbitrary and capricious, and
the district court abused its discretion in ignoring this factor in its analysis.
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b. Phasing
Plaintiffs claim that the EA does not adequately discuss the significant
impacts associated with phasing the Project. Phasing refers to environmental
impacts that occur because a project will not be constructed all at once.
12
The
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n.3. This determination appears to rest on a single traffic study. This study deals
only with traffic volumes on 700 West. It does not assess impacts to persons who
live along 11400 South during the time period after the interchange has been
constructed, but before the extension and expansion have been completed, a time
period which may span a decade or more.
13
See 40 C.F.R.
1508.8(b).
c. Noise
The EA/4(f) discloses a significant, and in some cases dramatic, increase in
noise levels in the vicinity of the Project. The average noise level in the Project
area is currently approximately 57 dBA. This level is defined in the UDOT noise
abatement policy as an appropriate noise level for [l]ands on which serenity and
To the extent that inconveniences resulting from construction can be
characterized as temporary or construction-related, a finding of no significant
impact from the phased construction could be upheld.
See Sierra Club v. Slater ,
120 F.3d 623, 635 (6th Cir. 1997). However, here, plaintiffs argue that the
remainder of the Project may be delayed for a decade or more, or perhaps
permanently. We could not find any definitive timetable for the completion of
Phase II in the EA or in the administrative record other than the statement in the
record that the Jordan River crossing at 11400 South is not planned for the
immediate future. Counsel for plaintiffs at oral argument said that Phase II will
be built in ten to twenty years, if at all. Counsel for FHWA disputed a twenty
year time frame and suggested a three to eight year time frame. It is clear, from
all of this, that there will be at the least a very substantial delay between Phase I
and Phase II.
13
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In their opening brief, plaintiffs argue that we may not take into
account mitigation measures when assessing whether a significant impact exists.
This is plainly wrong. See Natl Parks & Conservation Assn v. Babbitt, 241 F.3d
722, 733-34 (9th Cir. 2001) (quotations and footnote omitted), cert. denied, 122
S. Ct. 903 (2002); Boomer Lake, 4 F.3d at 1556.
15
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Defendants rejected the option of slowing down traffic on the road, even
through the parkland section, because the Projects purpose and need requires a
speed of at least 40 to 45 mph. Horizontal and/or vertical alignment shifts were
rejected as impractical, as were landscaping and berms. Noise walls are
mentioned for part of the roadway, but merely as a recommendation: a final
decision on the installation of the abatement measures will be made upon
completion of the project design and the public involvement process. It was
noted in the EA/4(f) that the noise walls are quite costly ($850,000) and the
defendants made no commitment to build them. 16
Mitigation measures may be relied upon to make a finding of
no significant impact only if they are imposed by statute or
regulation, or submitted by an applicant or agency as part of the
original proposal. As a general rule, the regulations contemplate that
agencies should use a broad approach in defining significance and
should not rely on the possibility of mitigation as an excuse to avoid
the EIS requirement.
Forty Most Asked Questions Concerning CEQ's National Environmental
Policy Act Regulations (Forty Questions), 46 Fed. Reg. 18,026, 18,038 (Council
on Envtl. Quality 1981) (emphasis added). 17 In short, the EA/4(f) makes no firm
Defendants argue that UDOT has already committed to provide the
mitigation. However, the cite to the record they provide does not establish a
binding obligation to provide the proposed mitigation.
16
(continued...)
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17
(...continued)
owed the substantial deference afforded to administrative rules that are the
product of notice and comment procedures. Assns Working for Auroras
Residential Envt, 153 F.3d at 1127.
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drafted fails to provide an adequate basis for a FONSI conclusion that the Project
will not have a significant effect on the human environment. 18
IV. Bond
Defendants contend that plaintiffs should be required to post a bond in
order to obtain a preliminary injunction.
resolved by the district court on remand. Fed. R. Civ. P. 65(c). Ordinarily, where
a party is seeking to vindicate the public interest served by NEPA, a minimal
bond amount should be considered. See, e.g., Friends of the Earth, Inc. v.
Brinegar, 518 F.2d 322, 322-23 (9th Cir. 1975). Here, plaintiffs are private
individuals rather than a public interest organization. Nevertheless, plaintiffs
strong showing on the merits and the defendants apparent prejudgment to
proceed prematurely with the Project before the required environmental studies
were considered suggests that a large bond should not be required.
The order of the United States District Court for the District of Utah
denying a preliminary injunction is REVERSED, and the case is REMANDED
for entry of a preliminary injunction barring further road construction pending
resolution of this case on the merits.
We have considered the other objections raised by plaintiffs to this
EA but have concluded that the remaining objections are without merit.
18
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