UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 27, 2013
SIERRA CLUB AND FRIENDS OF THE WEST SHORE, PLAINTIFFS,
TAHOE REGIONAL PLANNING AGENCY, COUNTY OF PLACER, AND BOARD OF SUPERVISORS OF THE COUNTY OF PLACER, DEFENDANTS.
HOMEWOOD VILLAGE RESORTS, LLC, AND JMA VENTURES, LLC, DEFENDANTS AND REAL PARTIES IN INTEREST.
MEMORANDUM AND ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT RE: CROSS MOTIONS FOR SUMMARY JUDGMENT
Before the court is Tahoe Regional Planning Agency ("TRPA"), the County of Placer (the "County"), Homewood Village Resorts, and JMA Ventures' (collectively, "defendants") motion to alter or amend the judgment of the January 4, 2013, Memorandum and Order Re: Cross Motions for Summary Judgment ("Order"), (Docket No. 69), pursuant to Federal Rule of Civil Procedure 59(e). (Docket No. 71.) The Order granted in part and denied in part cross motions for summary judgment. (Order at 113-14.) Plaintiffs Sierra Club and Friends of the West (together, "plaintiffs") oppose the motion.*fn1
Reconsideration is an "extraordinary remedy" which should be used "sparingly in the interests of finality and the conservation of judicial resources." Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); see also Sch. Dist. No. 1J, Multonomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (stating that reconsideration should only be granted in "highly unusual circumstances"). A motion for reconsideration "should not merely present arguments previously raised, or which could have been raised in the initial . . . motion." United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1130 (E.D. Cal. 2001) (citing Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985)). It has been said that under Rule 59(e), "[r]econsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J, 5 F.3d at 1263.
Defendants argue that the court committed legal error by requiring revision of the EIR-EIS after finding that the EIR-EIS's analysis of Alternative 6 was inadequate and that substantial evidence did not support the County and TRPA's respective findings that Alternative 6 was economically infeasible. Defendants point to the directive in California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code § 21000-21176, case law that when the feasibility of an alternative depends on economic factors, the evidentiary basis for the agency's finding that the alternative is economically infeasible need not be in the EIR itself, but must be in the administrative record. See, e.g., Flanders Found. v. City of Carmel-by-the-Sea, 202 Cal. App. 4th 603, 618 (6th Dist. 2012). The court acknowledged this requirement in its Order, explaining that "CEQA does 'not require the EIR itself to provide any evidence of the feasibility of . . . alternatives, much less an economic or cost analysis of the various project alternatives and mitigating measures identified by the EIR." (Order at 55 (quoting San Franciscans Upholding the Downtown Plan v. City & Cnty. of S.F., 102 Cal. App. 4th 656, 690-91 (1st Dist. 2002)).) The court cannot agree with defendants, however, that in requiring the preparation of a legally adequate EIR-EIS it committed clear error or that the remedy it ordered is manifestly unjust.
The "Guidelines," which flesh out CEQA's provisions, prescribe that an EIR "include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project."*fn2 Cal. Code Regs., tit. 14, § 15126.6, subd. (d). An EIR-EIS must have "'detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.'"*fn3 Pres. Action Council v. City of San Jose, 141 Cal. App. 4th 1336, 1355 (6th Dist. 2006) (quoting Laurel Heights Improvement Ass'n v. Regents of Univ. of Cal., 47 Cal. 3d 376, 405 (1988)). Further, "the agency preparing the EIR may not simply accept the project proponent's assertions about an alternative; the agency must 'independently participate, review, analyze and discuss the alternatives in good faith.'" Save Round Valley Alliance v. County of Inyo, 157 Cal. App. 4th 1437, 1460 (4th Dist. 2007) (quoting Kings Cnty. Farm Bureau v. City of Hanford, 221 Cal. App. 3d 692, 708 (5th Dist. 1990)).
At the outset of the Order's analysis of the EIR-EIS's alternatives discussion, the court explained that one of the project's objectives was to generate sufficient revenue to support the project's proposed environmental and fire safety improvements, as well as the economic viability of the ski operations. (Order at 30.) As noted in the Order, the EIR-EIS, based on information provided by the project proponent, rejected that Alternative 6 could meet that objective of economic feasibility.*fn4 (Order at 56-57; see also Administrative Record 3923 ("Alternatives consisting of fewer than the 282 units included in Alternative 6 would likewise be financially infeasible . . . .") (emphasis added).)
In Preservation Action Council v. City of San Jose, the court ruled that the EIR's analysis of a reduced-size alternative was inadequate because ambiguity regarding the size of the alternative "would have made it difficult to compare the size of the . . . alternative to the size of other home improvement warehouses in the area in order to evaluate the validity of the claim by [the project proponent] that the . . . alternative was infeasible because it would produce a 'competitive disadvantage.'"* Pres. Action Council, 141 Cal. App. 4th at 1355. In other words, the EIR made it impossible to determine whether the alternative would achieve the project applicant's objectives.
The ambiguity in that case "meant that the public and the City Council were not properly informed of the requisite facts that would permit them to evaluate the feasibility of th[e] alternative," id., and that the EIR "lacked 'detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully' the reduced-size alternative," id. (quoting Laurel Heights Improvement Ass'n, 47 Cal. 3d at 404-05).
After explaining that the City also did not include meaningful detail in the record regarding the project proponent's claim that the reduced-size alternative was infeasible or make a specific finding validating that claim, the court in that case held that "[t]he City violated CEQA by failing to ensure that the [EIR] adequately analyzed the potentially feasible and environmentally superior reduced-size alternative and failing to make a specific finding, based on substantial evidence, regarding the feasibility of the reduced-size alternative." Id. at 1357. The court therefore required revision of the EIR to remedy its inadequate analysis of the reduced-size alternative. Id. at 1357-58 (also requiring adoption of appropriate findings based on substantial evidence).
In the instant case, this court likewise ordered revision of the EIR-EIS after making comparable rulings regarding the EIR-EIS's analysis of Alternative 6's economic feasibility and the County and TRPA's respective findings that Alternative 6 is economically infeasible.*fn5 Not to have ordered revision of the EIR-EIS would have ignored the distinction between the feasibility determinations the County and TRPA are entitled to make on the record and the analysis of a project's alternatives that CEQA requires to be in the EIR-EIS. To properly compare alternatives, information on how each alternative meets or fails to meet the project's objectives must be adequate and accurate. Because the project's economic feasibility is one of its key objectives, simply redoing findings will not cure the defect in the EIR-EIS identified by the court in its Order and ensure that the EIR-EIS is the public informational document and guide for the agencies it is intended to be. Accordingly, the court neither committed clear error nor ordered a manifestly unjust remedy.
IT IS THEREFORE ORDERED that defendants' motion to alter or amend the judgment be, and the same hereby is, DENIED.