The opinion of the court was delivered by: Bernard Zimmerman, United States Magistrate Judge
ORDER GRANTING PLAINTIFFS'
MOTIONS FOR SUMMARY
JUDGMENT AND DENYING
DEFENDANTS' MOTION FOR
The Town of Mammoth Lakes ("Town") is located on the eastern side of Sierra Nevada in southern Mono County, an area with unique natural attractions but inconvenient access. The Mammoth Yosemite Airport, which is small and presently has no scheduled commercial service, is approximately seven miles east of the Town on U.S. 395. In the late 1990's, there were plans afoot to upgrade the area's ski facilities and to construct thousands of new housing units. At the same time, the Town was concerned that it was losing skiing visitors to resorts with regularly scheduled commercial air service. The Town therefore proposed an expansion of the airport to accommodate commercial jet traffic, and hopefully increase substantially the number of visitors to the region. On May 30, 2000, the Mammoth Mountain Ski Area, whose majority owner is Intrawest Corporation, entered an air service agreement with American Airlines initially for commercial flights from American's hubs in Chicago and Dallas.
In October 2000, the Town published a draft environmental assessment for this expansion project. In particular, the Town proposed strengthening and extending the airport's runway, creating an air carrier apron, adding access roads and parking facilities and constructing a passenger terminal complex. The project contemplated an eventual expansion of air services with other carriers and from additional cities. The long-term result would be hundreds of thousands of air passengers every year at the Mammoth Yosemite Airport. The draft environmental assessment concluded that there would be "no significant environmental impact caused by the expansion of the airport that could not be satisfactorily mitigated." Administrative Record ("AR") 88 at 1. A number of state and federal agencies, along with environmental organizations and individuals, submitted comments contesting that conclusion.
In December of 2000, the Town submitted a final environmental assessment ("FEA") which was little changed from the draft. The Federal Aviation Administration then adopted the FEA and signed a Finding of No Significant Impact ("FONSI") for the project. Some of the concerned agencies, including plaintiff the State of California, continued to express their concerns about the project. In March 2001, the Town addressed a few of those concerns,*fn1 in a document, which though titled, "Errata," supplements, rather than corrects, the FEA. Also in March 2001, Jones & Stokes, a firm retained by the consulting airport engineer, prepared a Biological Assessment to assist Mammoth Yosemite Airport with biological resource issues related to the airport expansion project. AR 241 Ex. A. Based on information in the Biological Assessment, the United States Fish and Wildlife Service ("FWS") prepared a Biological Opinion in July 2001. On July 29, 2002, the Federal Aviation Administration ("FAA") issued a Record of Decision ("ROD") unconditionally approving the airport project and the FONSI.
Thereafter, the People of the State of California and the Sierra Club and other conservationist organizations (collectively "plaintiffs") filed separate actions against federal defendants the United States Department of Transportation, Secretary of Transportation Norman Mineta, the Federal Aviation Administration and Federal Aviation Administrator Marion Blakey (collectively "defendants"), alleging that defendants had violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-4370d, by approving the FEA and issuing the FONSI for the airport expansion project at the Mammoth Yosemite Airport.*fn2 Plaintiffs seek orders enjoining the expansion project and requiring defendants to prepare an Environmental Impact Statement ("EIS") in compliance with NEPA.
Pursuant to stipulation, the parties filed cross-motions for summary judgment and I held a hearing on April 16, 2003. For the reasons stated below, I find that under the circumstances of this case, defendants' decision not to prepare an EIS was unreasonable.*fn3 NEPA requires federal agencies to prepare an EIS prior to taking "major Federal actions significantly affecting the quality" of the environment." Kern v. United States Bureau of Land Management, 284 F.3d 1062, 1067 (9th Cir. 2002) (quoting 42 U.S.C. § 4332(2)(C)). An agency may prepare an EA, which briefly describes the need for, alternatives to, and environmental impacts of the proposed federal action, to decide whether the impacts of the proposed action are significant enough to warrant an EIS.
Blue Mountains Diversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (citing 40 C.F.R. § 1508.9). If an agency determines in the EA that the federal action will not significantly affect the environment, the agency must issue a FONSI and its NEPA review ends. See Blue Mountains, 161 F.3d at 1212; 40 C.F.R. § 1508.13.
In reviewing an agency's decision not to prepare an EIS, the inquiry is whether the "`responsible agency has "reasonably concluded" that the project will have no significant adverse environmental consequences.'" Save the Yaak Committee v. J.R. Block, 840 F.2d 714, 717 (9th Cir. 1988) (quoting San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980)). "If substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable." Id. (emphasis in original). An agency's decision not to prepare an EIS is unreasonable if the agency fails to "`supply a convincing statement of reasons why potential impacts are insignificant'" because "`[t]he statement of reasons is crucial' in determining whether the agency took a `hard look' at the potential environmental impact of a project" as required by NEPA. Id. (quoting Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir. 1985)).
Whether a project may cause a significant effect on the environment requires consideration of context and intensity. National Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 731 (9th Cir. 2001); 40 C.F.R. § 1508.27.
Context simply "delimits the scope of the agency's action, including the interests affected." National Parks, 241 F.3d at 731; see also 40 C.F.R. § 1508.27(a). Intensity relates to the "degree to which the agency action affects the locale and interests identified in the context part of the inquiry," and includes consideration of factors such as the controversial nature of the project, the cumulative impacts of the project and the degree to which the project may impact endangered or threatened species. Id.; see also 40 C.F.R. § 1508.27(b).
A review of the FEA begins with the nature of the opposition. It comes not just from concerned citizens or environmental organizations such as plaintiffs Sierra Club, National Parks Conservation Association, California Trout, Inc. and Natural Resources Defense Council; it comes from many of the state and federal agencies charged with environmental or conservation responsibilities in the region. In fact, the plaintiff in the lead suit is the State of California. Little would be gained by chronicling the FEA's failure to adequately address each of the issues See AR 241 Ex. B, Appx C at 2. This does not alter the fact that substantial questions were raised at the time the FEA and FONSI were prepared that should have triggered raised by the various state and federal agencies.*fn4 One example will suffice. In response to the draft environmental assessment, on November 14, 2000, the California Department of Fish and Game ("DFG") submitted a lengthy and detailed letter concluding that "the information contained in the FEA is inadequate to support a finding of no significant impact." AR 127 Appx J at S-D.
On December 15, 2000, a DFG representative called the FAA to request more information and time to prepare a final response to the FEA. AR 118. FWS was also reviewing the FEA at that time and had decided to request that the FAA prepare an EIS. AR 119. Notwithstanding defendants' knowledge about the concerns these agencies were raising, on that same day, the FONSI was recommended for approval. AR 125.
The FONSI states that the FEA was "coordinated with" these concerned governmental agencies. The record, however, demonstrates that the FEA ignored or did not adequately treat their concerns.*fn5 In doing so, the FEA failed to evaluate "the degree to which the effects on the quality of the human environment are likely to be controversial." 40 C.F.R. § 1508.27(b)(4). In this context, the term "controversial" refers to "cases where a substantial dispute exists as to the size, nature, or effect of the major Federal action rather than to the existence of opposition to a use." Sierra Club v. United States Forest Serv., 843 F.2d 1190, 1193 (9th Cir. 1988) (finding that where Sierra Club presented evidence from numerous experts showing the EA's inadequacies and casting doubt on the agency's conclusions, "[t]his is precisely the type of `controversial' action for which an EIS must be prepared."). Concerns about a project's substantial impacts raised by agencies with special expertise weigh in favor of requiring an EIS. See Foundation for No. Am. Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1178-79 (9th Cir. 1982). Opposition to a project does not necessarily create a controversy requiring an EIS, (see Surfrider Foundation v. Dalton, 989 F. Supp. 1309, 1323 ...