May 2021 - Parks & Recreation - 33

Under APA review, the federal appeals court conceded that " it is arbitrary and capricious for an agency to
entirely fail to consider an important aspect of the problem. " On the other hand, the court noted:
An agency is not required to address in detail every single
comment to prove that it considered the relevant factors, much
less to anticipate conclusory supposition about speculative
and tangential effects that are not supported by evidence in
the record.
As to collision frequency, the federal appeals court
recognized " the undisputed purpose of the Project is to
widen the road in order to provide room for off-tracking STAA trucks. " Accordingly, the appeals court
found Caltrans had reasonably concluded the Project
would " decrease the incidence of vehicles colliding
with trees. " In so doing, the court rejected plaintiff
Bair's assumption that the Project would increase the
risk of collisions because " the pavement will be closer
to some trees. " Applying appropriate judicial review
under the APA, the federal appeals court held: " Caltrans' conclusions regarding the frequency of collisions
were reasonable and entitled to deference, especially
because they pertain to an 'area of agency expertise.' "
Moreover, as to damage severity, the appeals court
had " not located any comments or documents in the
administrative record which indicate that STAA trucks
would cause more damage when they strike trees. "
Accordingly, in the opinion of the appeals court, " the
district court's speculation that trees would suffer more
severe damage from collisions because of the weight
or shape of STAA trucks is not supported by any evidence in the record. " As a result, the federal appeals
court held: " It was reasonable for Caltrans' EA not
to anticipate that unfounded speculation. " The appeals court, therefore, rejected Bair's argument that a
responsibly drafted Caltrans EA would necessarily require Caltrans to " amass evidence demonstrating the
comparative damage caused to trees by collisions with
STAA trucks and California Legal trucks. "
As a result, the federal appeals court was " satisfied that
Caltrans took a hard look at the consequences of the Project, and adequately considered the relevant factors. " While
" Bair or the district court may disagree with Caltrans' conclusions, " the appeals court noted such disagreement " does
not constitute a NEPA violation. " On the contrary, in this
case, the federal appeals court concluded " the district court
erred in finding Caltrans' EA arbitrary and capricious and
in setting aside the 2017 FONSI. "

Conclusion
The federal appeals court, therefore, reversed the district
court's judgment " requiring Caltrans to produce an EIS
and enjoining it from continuing the Project until it has
done so. " The appeals court, however, remanded this case
back to the district court for further proceedings to consider Bair's other claims regarding defects in the Caltrans
consideration of the Project, including alleged violations
of section 4(f) of the Department of Transportation Act
and section 7 of the Wild and Scenic Rivers Act. On remand, the federal appeals court expressed the expectation
that " the district court will now expeditiously consider and
dispose of those remaining claims; " noting: " The parties
have engaged in contentious litigation over the (relatively
limited) Project for more than ten years. "
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Sport, Recreation and Tourism
Management at George Mason University (jkozlows@gmu.edu).
Link to law review articles archive (1982 to present): mason.
gmu.edu/~jkozlows.

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