may please the court my name is stephanie richards i'm a law student from gonzaga university i'm certified for student practice in this court and i'm supervised by professor rick stat of gonzaga university legal assistance clinic i'd like to reserve three minutes for a bottle of my me please watch your time thank you we represent the appellant in this action don hamilton lorna st john quentin wood and the prairie protection association they're a group of neighbors who live and farm alongside big gulch and north fork a road in spokane county washington this roadway is eight miles of a two lane road that goes through the countryside and there are three fundamental points that i'd like to discuss with the court today the first is this case is important because it goes beyond spokane county washington this case is an example of federal highway administration relying on a cramped interpretation of their own regulations when they lay down new highway alongside or near an  highway they then argue this circumvents there need to do a full environmental impact statement and instead produce an environmental assessment i have a question on a on a basic level you argue that f a a regulation twenty three c f r section seven seven one point one one five requires f i don't do we call to highlight what we say that all highways well federal highways that's easier than doing that it requires them to show that its decision is not to prepare any i a s was not arbitrary improve her preach it seems to me you're asking for a new rule to alter the standard of review under the a p a which requires you to show that the agency is decision don't have to show it wasn't you have to show it was correct agreed your honor ok i just want to get that straight because ok the burden of proof you know who's got the burden of the standard of review could be pretty significant absolutely and under the a a we will discuss that this decision was arbitrary and capricious not in accordance with law or in accordance with the procedures that are required by law in this case the federal highways issued an environmental assessment this environmental assessment was inadequate as it only analyzed the two options are no change option and their preferred option and third we're going to discuss how the environmental assessment was demonstrably inadequate because this court heard what our clients had been saying all along that the environmental assessment missed key environmental considerations including the wetlands at the corner of bigelow gulch and old argonne road it was not on the list of analyzed wetlands i thought what's the status of that currently your honor the current status from the time of this appeal there there have been quite a few changes there outside the scope of what's before the court today mr walter from representing federal highways may be able to answer that question better but what's the wetland that you think was missed was that part of the project the wetlands located right in the heart of the project area it's the entire road corridor and it's it's right in the middle of the one that you think was missed the wetland is not on the list of impacted wetlands but in the project area so you're saying that the wind that was missed is right in the middle of the project area the product areas at eight mile long two lane road and it is right on that road it's right in the middle like at the how it's going to be built through the wetland is that what you're saying the road currently exists and it's off to the side of that road and it is within the quarter of the project so currently the bigelow gold and fork are road art there's two lanes with one to three foot paved shoulders on either side and the new roadway the project that we're discussing today costs fifty two million dollars and more than doubles the footprint of that road to a divided four lane highway with pretty typically happens when you move from two lanes to four ness the divided with the with the left turn lanes and the right slow down lanes to keep traffic flowing and the key point is that a almost thirty percent or about two and a half miles of this project will be the four lane highway on a new location which goes to the  regulation with that we were discussing right they say the appellee appears to have issued what's called a medicated fanti in this case impacts two aspects of human environment like wetlands may have been significant absent mitigation but the agency concluded that the mitigate that with mitigation the impacts would be less than significant why was that decision on reasonable the mitigation impacts discuss the  for wetlands which is one factor of the entire impact that this roadway project will have we're going through rural neighborhoods there will be a four lane highway move close to home they'll be new road put through hills that are currently covered in forest in some places there is farmland that will be impacted so that's just one aspect of the of the project is the wetland medication so but why was that unreasonable unreasonable because what our clients have wanted is the us to be what we know he was in the first place you know what you want if you have to but you've got to show that in agencies decision was arbitra and then i asked you on the mitigated francais why was it unreasonable so it can't just be what you want the fonzie was a result of the environmental assessment the decision to produce the environmental assessment we believe w arbitrary and capricious because it doesn't follow the procedures that are laid down by law this means but the procedure i think that you're talking about says normally and you argue that that makes it mandatory and the word normally is not the same as shall or normally is not the same or shall normally means what you do in the normal course of business what you do most of the time what you do usually what we have is a situation here where the what is unusual but  argue that normally means mandatory if you argue that it that it was mandatory that they did it but i think you've got to get past normally normally indicates that that's what's going to happen most of the time and the regulation provides a list of things that normally will require an environmental impact statement and one of those things is four lanes of highway on a new location and that's exactly what we have here we have a major project that includes that aspect on that list that is provided within the text of the statute so our human does that to the plate that was on the plane and i'm just kind of pointing out when i say our first flight discuss the standard of review which i think you had it turned upside down then then i think that normally the way that you argued it was trying to make it mandatory but i wouldn't say that normally is mandatory but i would normally happens more often than not and and then i have another issue that these are all things in terms of in your reply brief you argue that significantly beneficial impact require preparation of any i a s but you devoted only one sentence to this point on page nineteen of your opening brief and it was in the so the government did not address this issue and the answer in brief have you waive that issue the issue regarding beneficial impacts beneficial impacts will that you don't set as a separate argument in your opening brief and then you you know usually you don't get to wait to your reply brief and then say that you know that and fault someone for not addressing it they get to say that you waived it but you wait that issue the one sentence in your opening brief about beneficial impacts and i think it's couched in the facts the beneficial impacts of the project on the well that you argue that the significantly beneficial impacts require preparation of any i r s say one line in your facts not it's not a separate argument but then you develop that in your reply brief well that doesn't get the government can't respond to that so why isn't that issue waived your honor i would i  would respectfully say that i don't know the answer to that question and it may in fact be waived if it was not fully developed in the in the opening brief which unfortunately i i was not working on one time going on a assessment was did not consider a sufficient range of alternatives and it didn't consider all of the facts it goes is it something more of them the e a a since we considered the impact on all wetlands and you're only considering two options goes against the intent of the environmental assessment process but this wetland really points out how facts were messed it is in the records that the neighbors brought this well into the federal highways attention and in the record and it's that's my concern that i have is the declarations that about are outside the administrative record they are outside the record and this is exactly why those wetlands should have been included in the analysis because now we're having this kind of side conversation about whether or not the improvements to the to the roadway  storm water or to pollution will or will not impact this wetland we don't know if in our review limited to the documents that were generated during the administrative process how can we consider extra record evidence at the district court level the eastern district of washington chose to look at those documents said that they were not considered did somewhat refer to them in its order  the the district court may consider extra record material if it falls into some narrow categories and one of those is if admission is necessary to determine whether the agency has considered all relevant recorded stated it did not consider that information in its decision did refer to it slightly later in the opinion but stated that it was not considered in the decision so what does that leave us in terms of whether or not we should consider this extra record information if it was not included in the administration of proceedings and the district court issued in a reliance on it what do we do with it well this court does review the decisions of the lower court genova oh so we do have all of that extra record material as part of the lower court record so to so to speak and we'll make the finding at this level that record needs to be aka minute i believe you can your honor that that on appeal we can make the determination that the administrative record can be minute i'm running low on time so if i could answer that it's needed projects to improve vehicle and capacity on a narrow windy road with a higher than average collision and fatal collision rate so nothing's been done yet as am i to assume that  it hasn't been built yet because that would make this mood right some efforts have been made along the project that's been divided into six phases and there has been some work done on  some of the early phases and critical to what is at issue here regarding the purported wetland that area was done as a separate project outside of this project environmental assessment and i can directly address that issue right now if it's like you need to address that in terms of why doesn't that undermine this decision why that because what the appellants are claiming is that that wetlands should have been addressed and therefore that's why they're you know it undermines the process that you did and makes it arbitrary and capricious and so what consideration was given or why wasn't it necessary to give any consideration yes your honor so the two thousand and seven final environmental assessment had extensive wetland analysis as can see in the environmental assessment sections and as extensive analysis include gulch roldan all are gone it is not your honor and the reason that that wetland is not included is because that wetland is in a portion of the overall eight mile tract of the project that was done completed in a separate project by spokane county in two thousand and five with separate funding and its own independent utility requirements because the argonne not old argonne are gone and bigelow gulch intersection was had increasing level of service needs and spoken county was able to achieve  separate grant money to build out that project area so separate separately spokane county expanded the bigelow gulch and argonaut intersection up to and so because that was separately done prior to the two thousand and seven final environmental assessment and all of that widening work had already been completed by spokane county there are no separate different expansion over this potential wetland area on the corner of all the hard on the top west corner of old are gone road and the low gulch road that project went through its own state level environmental assessment and built and it's been built it's done and the big project moving forward is not building out that area any further and as i said few citations in the record that i can point you to that discuss this project three a it's called phase three a because it's divided phases and this is part of phase three and one site in the record is the g one nine hundred forty five which discusses how this intersection has its independent utility logical term any and record pardon me i thought of them in the volumes within the administrative record and it's divided up that way but it's not in the excerpts your honor ok so then can you tell us is there anything in the excerpts of record that we have before us that confirms what you're talking about so in the excerpts of record it is on page fifty in the supplemental excerpts page fifty seven and it is a footnote that talks about how a portion of the phase three was completed in two thousand and five by spokane  county ok so it's your position since that had already been studied and already been done and that the project at hand here didn't change any of that that nothing else had to be done on that correct the project area that extensive mitigation was done but this area it's reasonable that federal highways did not include a wetland area in an area that had already been built and so therefore would not have further impacts and also important to this court's analysis of this potential missing wetland which i think is a reasonable not inclusion by federal highways is that  the reason this appeals before you today in twenty sixteen rather than two thousand and ten or closer to the two thousand and seven revised environmental assessment final time period is that there were other issues going on with the project that delayed the build out and that provided ample opportunities for federal ways to continue to evaluate whether the project is compliant with the new regulations and this triggering event for this appeal was the issuance of a reevaluation by federal highways in march of two thousand and fifteen and that reevaluation does include this wetland and continues to find no significant impact for the project area and i raise that as even if it was an error on the side of federal highways to not include it it was a harmless error because as w reasonably expected at the time there was not an impact at that wetland enters that intersection to a wetland and the entirety of the project still does not have a finding of significant impact and the burden on appellants is to show that there could be a significant impact that wasn't properly addressed in the environmental assessment and that has not been shown by appellants here let me ask you on i asked appellant about a waiver issue on beneficial impacts that so what's your position on their argument that they make and the rate hybrid that's not really developed in their opening brief i do believe the beneficial impacts argument has been waived i also think that it is even if it was not is not critical to the overall decision here today because presumably every project has beneficial and i agree with you on that but why can't significantly beneficial impacts require an agency to complete any i a s rather than in e a and i'm saying isn't comparing the significantly beneficial impacts of alternatives just another way of comparing relative detrimental impacts for alternatives another words if one alternative is more beneficial than the other then selecting one or the other would would have a detrimental effect wouldn't it so it's kind of like it's two sides of the same coin well a selection of an alternative needs to be reasonable so the standard is not one of us the lighting scale of what are the most benefits versus the least benefits certainly that's a reasonable thing to consider by federal highways in terms of wanting safety benefits wanting level of service improvements and having a range of options that meet the proposed goals and benefits of a project the requirement of a environmental impact statement considers all of the different factors underneath one of them is you know can be beneficial impacts and so in order to evaluate significant beneficial impacts it needs to be addressed in the environmental assessment here about whether or not that is significant and federal highways didn't have a thorough analysis of the benefits of the project and the analysis i think is supports their ultimate conclusion that this project is not having significant impacts on the human environment if i know that it's just because it costs you more in the long run doesn't mean that you have to do any i ask but it certainly seems in this case with the years of litigation i don't know that and yeah i ask could have been more expensive th assessment here is whether or not it reasonably supports the determination and the appellant's here have not shown what would have environmental impact statement provided that is not addressed in the environmental assessment and i'm looking at the federal highway regulations i think that it's important to see that we are in a class three category that looks at the proper determination of whether or not and yes is required requires actually the preparation of an environmental assessment to determine whether or not ultimately any i a s is needed and in that class three universe that's correct step under nepa to move forward with an environmental assessment and that was done here and the determination was made  significant impact will so you know your client applied several screening factors in order to justify not analyzing several alternatives in detail are the screening factors elements of the project purpose and need or the independent factors that federal highways used to avoid analyzing alternatives that would meet the project purpose and the kind of hard to pull those two apart well in chapter three that's dedicated to the alternatives analysis the final environmental assessment here built on the draft environmental assessment in two thousand and six and really dug in to try to provide more explanation for why other alternatives that were considered early on in the project were not appropriate and that addressed level of service which is washington state department of transportation guidelines as engineering issues cost issues so all of those factors were reasons for why other alternatives that are addressed in chapter three of the environmental assessment were ultimately not decided to be fully i guess what i'm asking you is if this green factor for separate from the proposed projects purpose a need do you have any cases that support the view that an agency can use factors beyond purpose and need to weed out reasonable alternative action alternative doing in depth analysis of those two is sufficient under the environmental assessment regulations and that you don't need to analyze every r the regulations under forty c f r section fifteen zero eight point nine require a brief discussion of alternatives for an environmental assessment and here we have far beyond the standard of native ecosystem's of looking at only the new action in preferred action we also show the step through of each of the earlier raised alternatives and why they were not found to be appropriate and they go beyond simply the purpose and the because they also address level of service engineering issues cost issues that are also safety and  safety factors that are within the reasonable expertise of federal highways to rule out screened out the purpose of the environmental assessment is to provide the environmental analysis of the viable options and the courts this court got that right and part of it to determine whether or not it's a viable option if the if it's not viable what's the point in doing an environment environmental assessment any project option that meets the stated goals of the project is considered to be a viable option isn't that determination for the highway administration to make its if it meets the goals there are there were many projects that were put out there that stated that they met the goals and they all deserved an environmental assessment to be part of that environmental assessment this court has stated in western watersheds v abbey for example that two alternatives in an environmental assessment is is inadequate especially when one is a no impact option which is not a not a truly viable option because there are true safety issues that are going on with this road to address your question earlier your honor i did misspeak or was misunderstand your question the well and was identified in the record it's volume three of the excerpts of record page three thirty five in there was this was an e mail that was delivered to federal highways that discussed the the existence of this wetlands all of the information on the update to the project the section you know three and a that's all as well extra record material for which i don't have a record cite for you the other important part that i'd like to discuss regarding this wetland being in section three a that was done you know ten years ago is that significance is a key part of the need to process and i say that i'm over my so please yes your honor we do believe that an environmental impact statement was required here based on the plain letter of the law and that the ear was inadequate based on the fact that it only analyzed two options and failed to analyze the wetlands we ask that you are versus the court below think you thank you and on behalf of the court we thank the clinic for appearing in here today for this argument thank you very much to all counsel the case just argued is that made it for decision to court you both did a good job and you know it's not easy to ever come and argue before the court but as a student i would have done you're a student and otherwise that doesn't that does not pertain in a way and results we don't speak to results but you thought