FILED

NOT FOR PUBLICATION

DEC 07 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PARADISE RIDGE DEFENSE No. 17-35848

COALITION,

D.C. No. 1:16-cv-00374-BLW Plaintiff-Appellant,

v. MEMORANDUM*

PETER J. HARTMAN, in his official capacity as Division Administrator for the Idaho Division of the Federal Highway Administration; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding

Argued and Submitted November 6, 2018 Portland, Oregon

Before: FERNANDEZ and IKUTA, Circuit Judges, and SESSIONS,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. The Paradise Ridge Defense Coalition (Coalition) appeals the district court’s

ruling that the Federal Highway Administration (FHWA) and the Idaho

Transportation Department (IDT) did not violate the National Environmental

Policy Act (NEPA) or other environmental requirements, see 23 C.F.R. § 771.125;

Executive Order 11,990, in selecting an alternative for construction of a new

segment of Highway US-95 south of Moscow, Idaho.

The FHWA took the “hard look” that NEPA requires, see Nat. Res. Def.

Council. v. U.S. Forest Serv., 421 F.3d 797, 810–11 (9th Cir. 2005), and the

agency’s decision was not arbitrary or capricious under the Administrative

Procedure Act, see Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 568 (9th Cir.

2016). We reject the Coalition’s multiple arguments to the contrary. First, the

FHWA’s reliance on the Highway Safety Manual for predicting the relative safety

of each alternative route was reasonable given that it is the industry standard for

highway safety, and the Coalition does not argue that the FHWA should have used

an alternative methodology. See Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d

1095, 1107–08 (9th Cir. 2016). The FHWA disclosed that the methodology did

not yield confidence intervals for each of the proposed alternatives, and the FHWA

also exercised engineering judgment in its evaluation of the proposed alternatives.

Further, the FHWA provided a “reasonably thorough discussion” of the risk and

2 severity of collisions between vehicles and wildlife, as well as mitigation measures

to decrease the risk of those collisions. See Neighbors of Cuddy Mountain v. U.S.

Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998).

Second, the FHWA did not make “an irreversible and irretrievable

commitment of resources” before completing its analysis, see Metcalf v. Daley,

214 F.3d 1135, 1143 (9th Cir. 2000), and so did not impermissibly predetermine

the outcome of the NEPA analysis. Nor did the FHWA err in considering one

route from each geographic corridor, because the routes within each geographic

corridor had substantially similar consequences, and NEPA “does not require a

separate analysis of alternatives which are not significantly distinguishable from

alternatives actually considered, or which have substantially similar

consequences.” See Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist.,

914 F.2d 1174, 1181 (9th Cir. 1990). The FHWA also discussed the mitigation

measures for invasive weeds “in sufficient detail to ensure that environmental

consequences [had] been fairly evaluated.” See Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 352 (1989).

Finally, to the extent the Coalition argues that the IDT violated NEPA, we

also reject those arguments because NEPA applies to federal agencies, not state

3 agencies, see 42 U.S.C. § 4332, and regardless, the agencies’ actions did not

violate NEPA for the reasons explained above.

Nor did the FHWA violate its regulation requiring prior concurrence in a

final Environmental Impact Statement under certain circumstances. See 23 C.F.R.

§ 771.125. The FHWA determined that prior concurrence was not necessary for

this project, and we afford “substantial deference” to an agency’s interpretation of

its own regulations, see Dep’t of Health & Human Servs. v. Chater, 163 F.3d 1129,

1133 (9th Cir. 1998).

The FHWA complied with Executive Order 11,990 by (among other things)

considering the wetlands impact alongside other pertinent factors, such as highway

safety, and outlining mitigation plans to minimize the impact to wetlands.

Executive Order 11,990 contemplates a balancing of factors, and the FHWA’s

selection of alternative E-2 is supported by the record and is not arbitrary,

capricious, or an abuse of discretion. See Nat’l Wildlife Fed’n v. Adams, 629 F.2d

587, 593 (9th Cir. 1980).

AFFIRMED.

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