Sierra Club et al v. Tahoe Regional Planning Agency et al

Filing 75

MEMORANDUM AND ORDER DENYING 71 Motion to Alter or Amend the Judgment Re: Cross Motions for Summary Judgment signed by Senior Judge William B. Shubb on 2/27/2013. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo---11
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SIERRA CLUB and FRIENDS OF THE
WEST SHORE,

NO. CIV. 2:12-0044 WBS CKD

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Plaintiffs,

MEMORANDUM AND ORDER DENYING
MOTION TO ALTER OR AMEND
JUDGMENT RE: CROSS MOTIONS FOR
SUMMARY JUDGMENT

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v.
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TAHOE REGIONAL PLANNING AGENCY,
COUNTY OF PLACER, and BOARD OF
SUPERVISORS OF THE COUNTY OF
PLACER,

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Defendants.

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HOMEWOOD VILLAGE RESORTS, LLC,
and JMA VENTURES, LLC,
Defendants and Real
Parties in Interest.
/

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----oo0oo---Before the court is Tahoe Regional Planning Agency

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(“TRPA”), the County of Placer (the “County”), Homewood Village

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Resorts, and JMA Ventures’ (collectively, “defendants”) motion to

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alter or amend the judgment of the January 4, 2013, Memorandum
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and Order Re: Cross Motions for Summary Judgment (“Order”),

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(Docket No. 69), pursuant to Federal Rule of Civil Procedure

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59(e).

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part cross motions for summary judgment.

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Plaintiffs Sierra Club and Friends of the West (together,

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“plaintiffs”) oppose the motion.1

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(Docket No. 71.)

The Order granted in part and denied in
(Order at 113-14.)

Reconsideration is an “extraordinary remedy” which

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should be used “sparingly in the interests of finality and the

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conservation of judicial resources.”

Kona Enter., Inc. v. Estate

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of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); see also Sch. Dist.

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No. 1J, Multonomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993) (stating that reconsideration should only be granted

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in “highly unusual circumstances”).

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“should not merely present arguments previously raised, or which

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could have been raised in the initial . . . motion.”

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States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1130 (E.D.

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Cal. 2001) (citing Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th

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Cir. 1985)).

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“[r]econsideration is appropriate if the district court (1) is

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presented with newly discovered evidence, (2) committed clear

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error or the initial decision was manifestly unjust, or (3) if

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there is an intervening change in controlling law.”

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No. 1J, 5 F.3d at 1263.

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A motion for reconsideration

United

It has been said that under Rule 59(e),

Sch. Dist.

Defendants argue that the court committed legal error
by requiring revision of the EIR-EIS after finding that the EIR-

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The detailed factual background of this case may be
found in the Order. See (Docket No. 69); Sierra Club v. Tahoe
Reg’l Planning Agency, Civ. No. 2:12-0044 WBS, --- F.Supp.2d ---, 2013 WL 79947 (E.D. Cal. Jan. 4, 2013).
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EIS’s analysis of Alternative 6 was inadequate and that

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substantial evidence did not support the County and TRPA’s

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respective findings that Alternative 6 was economically

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infeasible.

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Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000-

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21176, case law that when the feasibility of an alternative

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depends on economic factors, the evidentiary basis for the

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agency’s finding that the alternative is economically infeasible

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need not be in the EIR itself, but must be in the administrative

Defendants point to the directive in California

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record.

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202 Cal. App. 4th 603, 618 (6th Dist. 2012).

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acknowledged this requirement in its Order, explaining that “CEQA

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does ‘not require the EIR itself to provide any evidence of the

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feasibility of . . . alternatives, much less an economic or cost

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analysis of the various project alternatives and mitigating

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measures identified by the EIR.”

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Franciscans Upholding the Downtown Plan v. City & Cnty. of S.F.,

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102 Cal. App. 4th 656, 690-91 (1st Dist. 2002)).)

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cannot agree with defendants, however, that in requiring the

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preparation of a legally adequate EIR-EIS it committed clear

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error or that the remedy it ordered is manifestly unjust.

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See, e.g., Flanders Found. v. City of Carmel-by-the-Sea,
The court

(Order at 55 (quoting San

The court

The “Guidelines,” which flesh out CEQA’s provisions,

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prescribe that an EIR “include sufficient information about each

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alternative to allow meaningful evaluation, analysis, and

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comparison with the proposed project.”2

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14, § 15126.6, subd. (d).

Cal. Code Regs., tit.

An EIR-EIS must have “‘detail

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The Guidelines are set forth in the California Code of
Regulations, title 14, section 15000 et seq.
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sufficient to enable those who did not participate in its

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preparation to understand and to consider meaningfully the issues

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raised by the proposed project.’”3

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of San Jose, 141 Cal. App. 4th 1336, 1355 (6th Dist. 2006)

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(quoting Laurel Heights Improvement Ass’n v. Regents of Univ. of

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Cal., 47 Cal. 3d 376, 405 (1988)).

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preparing the EIR may not simply accept the project proponent’s

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assertions about an alternative; the agency must ‘independently

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participate, review, analyze and discuss the alternatives in good

Pres. Action Council v. City

Further, “the agency

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faith.’”

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App. 4th 1437, 1460 (4th Dist. 2007) (quoting Kings Cnty. Farm

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Bureau v. City of Hanford, 221 Cal. App. 3d 692, 708 (5th Dist.

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1990)).

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Save Round Valley Alliance v. County of Inyo, 157 Cal.

At the outset of the Order’s analysis of the EIR-EIS’s

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alternatives discussion, the court explained that one of the

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project’s objectives was to generate sufficient revenue to

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support the project’s proposed environmental and fire safety

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Defendants are correct that the quotation from Laurel
Heights cited in the Order’s discussion of the sufficiency of the
EIR-EIS’s analysis of Alternative 6 arose in the context of an
EIR’s failure to adequately explain why it had declined to
further analyze certain alternatives. But, at the same time, the
Laurel Heights court was also disapproving the minimal attention
the EIR gave to the “no project” alternative. Laurel Heights
Improvement Ass’n, 47 Cal. 3d at 403. It therefore had occasion
to explain the importance of meaningful analysis of alternatives
that are considered in an EIR in equivalent terms to those stated
in the Order: “An EIR's discussion of alternatives must contain
analysis sufficient to allow informed decision making. . . .
Without meaningful analysis of alternatives in the EIR, neither
the courts nor the public can fulfill their proper roles in the
CEQA process.” Id. at 404. The court went on to say, “An EIR
must include 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.” Id. at
405.
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improvements, as well as the economic viability of the ski

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operations.

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based on information provided by the project proponent, rejected

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that Alternative 6 could meet that objective of economic

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feasibility.4

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3923 (“Alternatives consisting of fewer than the 282 units

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included in Alternative 6 would likewise be financially

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infeasible . . . .”) (emphasis added).)

(Order at 30.)

As noted in the Order, the EIR-EIS,

(Order at 56-57; see also Administrative Record

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In Preservation Action Council v. City of San Jose, the

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court ruled that the EIR’s analysis of a reduced-size alternative

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was inadequate because ambiguity regarding the size of the

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alternative “would have made it difficult to compare the size of

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the . . . alternative to the size of other home improvement

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warehouses in the area in order to evaluate the validity of the

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claim by [the project proponent] that the . . . alternative was

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infeasible because it would produce a ‘competitive

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disadvantage.’”• Pres. Action Council, 141 Cal. App. 4th at 1355.

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In other words, the EIR made it impossible to determine whether

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the alternative would achieve the project applicant’s objectives.

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The ambiguity in that case “meant that the public and

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the City Council were not properly informed of the requisite

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facts that would permit them to evaluate the feasibility of th[e]

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alternative,” id., and that the EIR “lacked ‘detail sufficient to

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enable those who did not participate in its preparation to

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Obviously the court did not intend to suggest that the
EIR-EIS rejected analyzing Alternative 6 wholesale. Indeed, the
court rejected plaintiffs’ contention that the EIR-EIS needed to
analyze a further reduced-size alternative on the grounds that
analzying one reduced alternative--Alternative 6--was sufficient.
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understand and to consider meaningfully’ the reduced-size

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alternative,” id. (quoting Laurel Heights Improvement Ass’n, 47

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Cal. 3d at 404-05).

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After explaining that the City also did not include

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meaningful detail in the record regarding the project proponent’s

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claim that the reduced-size alternative was infeasible or make a

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specific finding validating that claim, the court in that case

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held that “[t]he City violated CEQA by failing to ensure that the

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[EIR] adequately analyzed the potentially feasible and

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environmentally superior reduced-size alternative and failing to

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make a specific finding, based on substantial evidence, regarding

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the feasibility of the reduced-size alternative.”

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The court therefore required revision of the EIR to remedy its

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inadequate analysis of the reduced-size alternative.

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1357-58 (also requiring adoption of appropriate findings based on

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substantial evidence).

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Id. at 1357.

Id. at

In the instant case, this court likewise ordered

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revision of the EIR-EIS after making comparable rulings regarding

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the EIR-EIS’s analysis of Alternative 6’s economic feasibility

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and the County and TRPA’s respective findings that Alternative 6

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is economically infeasible.5

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EIR-EIS would have ignored the distinction between the

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feasibility determinations the County and TRPA are entitled to

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make on the record and the analysis of a project’s alternatives

Not to have ordered revision of the

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The court found in its Order that the Tahoe Regional
Planning Compact, Pub. L. No. 96–551, 94 Stat. 3233 (1980); Cal.
Gov’t Code § 66801 et seq.; Nev. Rev. Stat. § 277.200 et seq.,
requires a comparable analysis of alternatives to CEQA. (Order
at 57.)
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that CEQA requires to be in the EIR-EIS.

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alternatives, information on how each alternative meets or fails

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to meet the project’s objectives must be adequate and accurate.

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Because the project’s economic feasibility is one of its key

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objectives, simply redoing findings will not cure the defect in

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the EIR-EIS identified by the court in its Order and ensure that

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the EIR-EIS is the public informational document and guide for

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the agencies it is intended to be.

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neither committed clear error nor ordered a manifestly unjust

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To properly compare

Accordingly, the court

remedy.

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IT IS THEREFORE ORDERED that defendants’ motion to

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alter or amend the judgment be, and the same hereby is, DENIED.

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DATED:

February 27, 2013

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