FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAPANESE VILLAGE, LLC, a

California Limited Liability

Company,

Plaintiff-Appellant,

v.

FEDERAL TRANSIT

ADMINISTRATION; CAROLYN

FLOWERS, in her official capacity as

Acting Administrator of the Federal

Transit Administration; LESLIE T.

ROGERS, in his official capacity as

Regional Administrator of the

Region IX Office of the Federal

Transit Administration; U.S.

DEPARTMENT OF TRANSPORTATION;

ANTHONY FOXX, in his official

capacity as Secretary of the U.S.

Department of Transportation; LOS

ANGELES METROPOLITAN

TRANSPORTATION AUTHORITY, a

California-chartered Regional

Transportation Planning Agency,

Defendants-Appellees.

No. 14-56837

D.C. No.

2:13-cv-00396-

JAK-PLA

OPINION
2 JAPANESE VILLAGE V. FTA

TODAY’S IV, INC., DBA Westin

Bonaventure Hotel and Suites, a

California Corporation,

Plaintiff-Appellant,

v.

FEDERAL TRANSIT

ADMINISTRATION; CAROLYN

FLOWERS, in her official capacity as

administrator of the Federal Transit

Administrator; LESLIE T. ROGERS, in

his official capacity as Regional

Administrator of the Federal Transit

Administrations Region IX Office;

UNITED STATES DEPARTMENT OF

TRANSPORTATION; ANTHONY FOXX,

in his official capacity as Secretary

of the United States Department of

Transportation; LOS ANGELES

COUNTY METROPOLITAN

TRANSPORTATION AUTHORITY, a

public entity; ARTHUR T. LEAHY, in

his official capacity as Chief

Executive Officer of the Los

Angeles County Metropolitan

Transportation Authority,

Defendants-Appellees.

No. 14-56973

D.C. No.

2:13-cv-00378-

JAK-PLA

Appeal from the United States District Court

for the Central District of California

John A. Kronstadt, District Judge, Presiding
JAPANESE VILLAGE V. FTA 3

Argued and Submitted August 1, 2016

Pasadena, California

Filed December 6, 2016

Before: Stephen Reinhardt and Kim McLane Wardlaw,

Circuit Judges, and Ronald M. Whyte,*

 District Judge.

Opinion by Judge Whyte

SUMMARY**

Environmental Law

The panel affirmed the district court’s summary judgment

in favor of federal and local transit agencies and officials

(appellees) on claims under the National Environmental

Policy Act brought by Japanese Village, LLC and Westin

Bonaventure Hotel alleging that appellees’ environmental

impact analysis for a new underground light rail line project

in downtown Los Angeles was inadequate.

Japanese Village and Bonaventure own real property near

the rail line project.

* The Honorable Ronald M. Whyte, United States District Judge for

the Northern District of California, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 JAPANESE VILLAGE V. FTA

As a preliminary matter, the panel declined to take

judicial notice of three documents on the Los Angeles

Metropolitan Transportation Authority website because the

documents were already in the appellate record. The panel

also declined to consider Japanese Village’s argument, that

the Mitigation Monitoring and Reporting Program was not

properly attached to the federal Record of Decision, because

Japanese Village failed to present the argument to the district

court.

The panel rejected Japanese Village’s challenges to the

adequacy of the mitigation plan included with the Final

Environmental Impact Statement issued in January 2012. 

Specifically, the panel held that appellees analyzed and

adopted additional mitigation measures for constructionrelated noises and vibration in Japanese Village after the

release of the Final Environmental Impact Statement, and the

failure to see the need for these mitigation measures at the

time the impact statement was released in January 2012 did

not violate NEPA. The panel further held that regardless of

whether temporary relocation was considered a mitigation

measure or a source of harm, appellees did not violate NEPA

as long as they took a hard look at each alternative and

discussed the extent to which adverse effects could be

avoided. The panel also held that appellees did not violate

NEPA by not specifically requiring “isolated slab track”

technology to mitigate operational noise and vibration from

trains passing below Japanese Village. The panel also held

that appellees’ plan to mitigate potential building subsidence

due to tunneling under Japanese Village was not arbitrary and

capricious, an abuse of discretion, or otherwise in violation of

law. Finally, the panel concluded that appellees’ analysis of

off-street parking impacts was sufficient to pass muster under

NEPA.
JAPANESE VILLAGE V. FTA 5

Addressing Bonaventure Hotel’s arguments, the panel

held that appellees were not arbitrary or capricious in finding

that Closed-Face Tunnel Boring Machine construction was

not a feasible alternative as a tunneling method for the Lower

Flower portion of the Project. The panel also rejected

Bonaventure’s challenges to the sufficiency of the project

impact and mitigation analysis in the Final Environmental

Impact Statement. Finally, the panel held that no

supplemental Environmental Impact Statement was required,

and rejected Bonaventure’s claim that appellees were

required to prepare a supplemental statement because Los

Angeles Metro applied for noise ordinance variances to

accommodate nighttime construction on Lower Flower after

the issuance of the Final Environmental Impact Statement.

COUNSEL

Robert D. Crockett (argued), Courtney Vandreuil, and Chase

Tajima, Crockett & Associates, Santa Clarita, California, for

Plaintiff-Appellant Japanese Village, LLC.

Christopher Sutton (argued), Law Office of Christopher

Sutton, Pasadena, California;Robert P. Silverstein and Bradly

S. Torgan, The Silverstein Law Firm APC, Pasadena,

California, for Plaintiff-Appellant Today’s IV, Inc.

Erika B. Kranz (argued), J. David. Gunter, and Jared

Pattinato, II, Attorneys; John C. Cruden, Assistant Attorney

General; Environment and Natural Resources Division,

United States Department of Justice, Washington, D.C., for

Federal Defendants-Appellees.
6 JAPANESE VILLAGE V. FTA

Whitman F. Manley and Tiffany K. Wright, Remy Moose

Manley LLP, Sacramento, California; Mark J. Saladino,

Coujnty Counsel; Charles M. Safer, Assistant County

Counsel; Ronald W. Stamm, Principal Deputy County

Counsel; Los Angeles County Counsel, Los Angeles,

California; for Defendant-Appellee Los Angeles County

Metropolitan Transportation Authority.

OPINION

WHYTE, District Judge:

Appellants Japanese Village, LLC and Today’s IV, Inc.

dba Westin Bonaventure Hotel (“Bonaventure”) appeal from

the district court’s grant of summary judgment in favor of

Appellees on Appellants’ claims under the National

Environmental Policy Act, 42 U.S.C. § 4321 (“NEPA”).

Appellants argue that Appellees’1

environmental impact

analysis for a new underground light rail line project in

downtown Los Angeles was inadequate. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Metro plans to construct the Regional Connector Transit

Corridor Project (“the Project”), a 1.9-mile light rail

extension line in downtown Los Angeles, with federal

1 The Appellees are: the Federal Transit Administration (“FTA”);

Peter Rogoff, the Administrator of the FTA; Leslie Rogers, the Regional

Administrator of the Region IX Office of the FTA; the U.S. Department

of Transportation; Ray LaHood, the Secretary of the U.S. Department of

Transportation; and the Los Angeles Metropolitan Transportation

Authority (“Metro”).
JAPANESE VILLAGE V. FTA 7

funding from the Federal Transit Administration. The Project

is intended to meet increased demand for public transit and

improve transit service in the region by connecting the light

rail Gold Line to the Blue and Expo Lines. The route for the

extension line begins at 7th and Flower Streets and travels

north on Flower Street to 2nd Street. It then continues east on

2nd Street to Central Avenue, where it turns north to intersect

the Gold Line at 1st and Alameda Streets as shown below:

Appellants Japanese Village and Bonaventure own real

property near the Project. The Japanese Village Plaza is a

shopping center and office complex in the Little Tokyo area

at the eastern end of the proposed line, and the Westin

Bonaventure Hotel occupies the block bounded by Flower,

4th, 5th, and Figueroa Streets in the Financial District.
8 JAPANESE VILLAGE V. FTA

A. NEPA Requirements

The National Environmental PolicyAct requires a federal

agency to prepare an Environmental Impact Statement

(“EIS”) for any“major Federal action[]significantlyaffecting

the quality of the human environment.” 42 U.S.C.

§ 4332(2)(C). NEPA applies to state transportation projects

with significant federal funding. Rattlesnake Coal. v. EPA,

509 F.3d 1095, 1101 (9th Cir. 2007). The EIS must include a

detailed statement regarding, inter alia: (i) “the

environmental impact of the proposed action”; (ii) “any

adverse environmental effects which cannot be avoided

should the proposal be implemented”; and (iii) “alternatives

to the proposed action.” 42 U.S.C. § 4332(2)(C). Once an

agency determines that an EIS is required, it must prepare a

draft EIS (“DEIS”). See 40 C.F.R. § 1502.9(a). The agency

then releases the DEIS to the public and other agencies for

comment. Id. § 1503.1(a). After the public comment period,

the agency prepares a final EIS (“FEIS”), in which it must

respond to comments made during the DEIS comment period.

Id. § 1502.9(b). After the FEIS is released, the agency has the

option to request comments before making a final decision.

Id. § 1503.1(b).

If the agency “makes substantial changes in the proposed

action that are relevant to environmental concerns” or there

are “significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action

or its impacts,” then the agency must prepare a supplemental

DEIS or FEIS. Id. § 1502.9(c).

The agency ultimately produces a record of decision

(“ROD”) that explains the rationale for agency’s decision. Id.

§ 1505.2. The ROD must include an assessment of all
JAPANESE VILLAGE V. FTA 9

practicable measures for mitigating environmental harm. See

id. § 1505.2(c).

B. Draft Environmental Impact Statement

In the instant case, the FTA published a Draft

Environmental Impact Statement for public comment in

September 2010. Metro had initially identified two build

alternatives for the Project: a light rail primarily operating

above ground (the “At-Grade Emphasis Alternative”) and a

light rail that was primarily underground (the “Underground

Emphasis Alternative”).

2 During the DEIS drafting process,

Appellees established a Little Tokyo Working Group, made

up of leaders of the Little Tokyo Community Council and

Metro staff, to discuss the impact of the Project on the

community. The Little Tokyo community had concerns about

the negative construction and operation impacts of both the

At-Grade Emphasis Alternative and the Underground

Emphasis Alternative. To address these concerns, the Little

Tokyo Working Group collaborated on the development of

the “Fully Underground Alternative,” which Metro staff

recommended in the DEIS. After the period for public

comment on the DEIS, Metro’s Board of Directors voted to

designate the Fully Underground Alternative as the Locally

Preferred Alternative.

2

In total, the DEIS discusses five alternatives: (i) the required “No

Build Alternative”; (ii) rapid bus lines between the stations (the

“Transportation System Management Alternative”); (iii) the “At-Grade

Emphasis Alternative”; (iv) the “Underground Emphasis Alternative”; (v)

and the “Fully Underground Alternative.”
10 JAPANESE VILLAGE V. FTA

C. Supplemental Environmental Assessment

Appellees continued to refine the Locally Preferred

Alternative and addressed the impact of the refinements in a

Supplemental Environmental Assessment/Recirculated

Sections of the DEIS (“SEA”) released in July 2011. The

refinements included reductions in the use of “cut and cover

construction” for tunnel excavation, replaced by the use of

“Tunnel Boring Machine” or “TBM” excavation.

Cut and cover construction entails excavating down from

the ground surface using temporary excavation support to

stabilize the ground before excavation begins. Temporary

concrete decking is placed over the “cut” to allow traffic to

pass above during construction; once the tunnel is complete,

the excavated trench area is backfilled and the temporary

decking is replaced by permanent surface. A tunnel-boring

machine is a large-diameter horizontal drill that is used to

excavate circular tunnel sections. Compared to the cut and

cover method, tunnel boring is far less disruptive to surface

traffic and adjacent land uses.

The Project refinements addressed in the SEA extended

the use of TBM south along Flower Street from 2nd Street to

4th Street. The Project route was also realigned to eliminate

the use of cut and cover construction on 2nd Street in Little

Tokyo in favor of Closed Face TBM construction. The new

route required Metro to purchase an easement for tunneling

below the Japanese Village shopping center and office

complex. The period for public comment on the SEA closed

on September 6, 2011.
JAPANESE VILLAGE V. FTA 11

D. Final Environmental Impact Statement and Record of

Decision

On January 20, 2012, Appellees issued a Final

Environmental Impact Statement and included responses to

the public comments on the SEA. Appellees then accepted

additional public comment on the FEIS and conducted a

series of meetings with community stakeholders between

February and April 2012. These efforts resulted in Metro staff

recommending that the use of Closed-Face TBM be extended

even farther south along Flower Street from 4th Street to 5th

Street, budget permitting. Metro also conducted additional

analysis of the extent to which mitigation measures could

reduce noise and vibration in Japanese Village. In advance of

the meeting to approve the Project, Metro staff recommended

that the Board adopt additional mitigation measures for

Japanese Village.

On April 26, 2012, the Metro Board adopted the staff’s

recommendations and voted to approve the project. The FTA

issued its Record of Decision approving federal funding for

the Project on June 29, 2012. The ROD includes a mitigation

monitoring and report plan (“MMRP”) as Attachment A.

E. District Court’s Decision, Final Supplemental

Environmental Impact Statement, and Supplemental

Record of Decision

Japanese Village, Bonaventure, and a third plaintiff filed

complaints challenging Appellees’ NEPA compliance in

January 2013. The parties brought cross-motions for

summary judgment. The district court granted summary

judgment in favor of Appellees on all claims except for one

claim on which Bonaventure prevailed. Japanese Village and
12 JAPANESE VILLAGE V. FTA

Bonaventure timely appealed several aspects of the district

court’s summary judgment ruling in favor of Appellees.

In December 2015, during the pendency of these appeals,

Appellees published a Final Supplemental Environmental

Impact Statement (“FSEIS”) and Supplemental Record of

Decision. Appellees prepared the FSEIS because the district

court had entered an injunction in connection with the one

claim on which Bonaventure prevailed, requiring FTA and

Metro to adequately analyze the open-face tunneling

alternatives on Lower Flower before beginning cut and cover

construction in that area.3In addition to the analysis required

by the district court, the FSEIS included discussion of

Closed-Face TBM on Lower Flower and expressly adopted

the additional mitigation measures for Japanese Village.

II. STANDARD OF REVIEW

We review the district court’s summary judgment ruling

de novo. San Luis & Delta-Mendota Water Auth. v. Jewell,

747 F.3d 581, 601 (9th Cir. 2014). Under the Administrative

Procedure Act, a “reviewing court shall . . . hold unlawful and

set aside agency action, findings, and conclusions found to be

. . . arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A). “[I]n

making the factual inquiry concerning whether an agency

decision was ‘arbitrary or capricious,’ the reviewing court

‘must consider whether the decision was based on a

consideration of the relevant factors and whether there has

been a clear error of judgment.’ This inquiry must ‘be

3 The district found that the FSEIS adequately addressed the openface tunneling alternatives on Lower Flower and dissolved the injunction

on February 5, 2016.
JAPANESE VILLAGE V. FTA 13

searching and careful,’ but ‘the ultimate standard of review is

a narrow one.’” Marsh v. Or. Nat. Res. Council, 490 U.S.

360, 378 (1989) (quotingCitizens to Pres. Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416 (1971) abrogated in part on other

grounds as recognized in Califano v. Sanders, 430 U.S. 99

(1977)).

III. JAPANESE VILLAGE CLAIMS

Japanese Village argues that the FTA failed to comply

with NEPA’s procedural requirements for creating a Record

of Decision because the ROD in this case incorporates

mitigation measures by reference. More significantly,

Japanese Village argues that the FEIS does not include

adequate analysis and mitigation discussion of:

(1) construction-related noise and vibration impacts; (2) longterm, operational noise and vibration impacts; (3) subsidence

risk; and (4) parking impacts. We address these arguments in

turn.

A. Judicial Notice of Material on Metro Website

As a preliminary matter, Japanese Village requests that

we take judicial notice of three documents on Metro’s

website: (1) a copy of the federal ROD in this case;

(2) “Attachment A: Mitigation Monitoring and Reporting

Program” (or “MMRP”); and (3) a web page containing links

to these two documents. Japanese Village offers these

documents to show that Appellees’ “official” MMRP on the

website matches one of the several versions of the MMRPs in

the appellate record. Appellees argue that judicial notice is

unnecessary because the FTA’s Region IX Administrator

submitted a declaration identifying the correct versions of the

ROD and its Attachments in the existing record. The
14 JAPANESE VILLAGE V. FTA

declarant confirmed that these documents are the same ones

on Metro’s website.

Judicial notice might ordinarily be appropriate for the

documents on Metro’s website because the documents were

“made publicly available by government entities . . . and

neither party disputes the authenticity of the web site[] or the

accuracy of the information displayed therein.” Daniels-Hall

v. National Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir.

2010) (citing Fed. R. Evid. 201). The parties at least agree

that the website contains the “official” copies of the ROD and

its attachments. In this case, however, it appears that the

Court need not rely on the Metro website because the

documents for which Japanese Village seeks judicial notice

are already in the appellate record. Accordingly, we decline

to take judicial notice of the three documents on Metro’s

website.

B. Adequacy of the Record of Decision’s Assembly

An ROD must “[s]tate whether all practicable means to

avoid or minimize environmental harm from the alternative

selected have been adopted, and if not, why they were not. A

monitoring and enforcement program shall be adopted and

summarized where applicable for any mitigation.” 40 C.F.R.

§ 1505.2(c). Japanese Village argues that the ROD in this

case fails to summarize Appellees’ monitoring and

enforcement program as required, apparently because the

ROD references an “Attachment A: Mitigation Monitoring

and Reporting Program,” but the MMRP is not directly

“attached” to the ROD. Rather, there is a gap in the page

numbering before the MMRP appears in the administrative

record, and, as noted above, the MMRP is in a separate

electronic file from the ROD on Metro’s website.
JAPANESE VILLAGE V. FTA 15

Appellees argue that Japanese Village waived any

argument that the FTA improperly assembled the ROD

because Japanese Village failed to present this argument to

the district court. “Absent exceptional circumstances,” we

“generally will not consider arguments raised for the first

time on appeal,” although we have discretion to do so. Baccei

v. United States, 632 F.3d 1140, 1149 (9th Cir. 2011). The

Court “may exercise this discretion (1) to prevent a

miscarriage of justice; (2) when a change in law raises a new

issue while an appeal is pending; and (3) when the issue is

purely one of law.” Id. Japanese Village acknowledges in

reply that it did not raise the issue of an ROD assembly defect

with the district court. Moreover, Japanese Village does not

argue that any exceptional circumstances require us to

consider its assembly defect arguments. Accordingly, we

decline to consider Japanese Village’s argument that the

MMRP was not properly attached to the ROD.

C. Adequacy of Environmental Impact Statement

Japanese Village challenges the adequacy of the

mitigation plan included with the FEIS that issued in January

2012. An EIS, which chronologically precedes an ROD, must

include a discussion of possible steps to mitigate

environmental harm. The U.S. Supreme Court has described

the mitigation requirement as follows:

[O]ne important ingredient of an EIS is the

discussion of steps that can be taken to

mitigate adverse environmental consequences.

The requirement that an EIS contain a detailed

discussion of possible mitigation measures

flows both from the language of the Act and,

more expressly, from CEQ’s implementing
16 JAPANESE VILLAGE V. FTA

regulations. Implicit in NEPA’s demand that

an agency prepare a detailed statement on

“any adverse environmental effects which

cannot be avoided should the proposal be

implemented,” 42 U.S.C. § 4332(C)(ii), is an

understanding that the EIS will discuss the

extent to which adverse effects can be

avoided.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

351–52 (1989) (citation omitted). As the Supreme Court and

Ninth Circuit have acknowledged, NEPA “does not mandate

particular results, but simply prescribes the necessary

process.” Id. at 350 (explaining that “[i]f the adverse

environmental effects of the proposed action are adequately

identified and evaluated, the agency is not constrained by

NEPA from deciding that other values outweigh the

environmental costs”); Conner v. Burford, 848 F.2d 1441,

1450 (9th Cir. 1988) (clarifying that “NEPA does not require

that mitigation measures completely compensate for the

adverse environmental effects”).

Japanese Village takes issue with four aspects of

Appellees’ mitigation plan, described below.

1. Construction-Related Noise and Vibration

Japanese Village first argues that Appellees have not

adequately addressed noise and vibration from construction

of tunnels under the Japanese Village property. As described

above, the FEIS was issued in January 2012. The FEIS noted

that during operation of the tunnel-boring machine, certain

portions of Japanese Village could sometimes experience

ground-borne vibration (GBV) of 86 VdB and ground-borne
JAPANESE VILLAGE V. FTA 17

noise (GBN) of approximately 51 dBA.4Japanese Village

businesses fall into a category of land use for which the

federal annoyance criteria for infrequent vibration and noise

are 83 VdB and 48 dbA, respectively. Id. Thus, the FEIS

recognized that without some mitigation, construction could

cause significant impact to Japanese Village. The FEIS

described several mitigation measures, numbered with the

prefix “NV-,” that could reduce noise and vibration at various

construction locations. The measures include proper

“maintenance and operation” of equipment and use of a

“resilient mat” for delivery trains, among others. The FEIS

also provided that “Metro shall monitor GBN and GBV levels

in the in the [sic] building adjacent to TBM activity during its

operation in that area” and that “[d]uring the few days the

TBM will be operating in this area, should GBN or GBV

measurements exceed FTA annoyance criteria for short-term

impacts during construction, Metro shall offer to temporarily

relocate affected residents.”

During the comment period for the FEIS, Japanese

Village told Metro that the proposed noise and vibration

mitigation measures described in the FEIS were inadequate.

Specifically, Japanese Village argued that particular

mitigation measures adopted for other construction locations,

includingNV-19, NV-21, NV-22, NV-23, and NV-27, should

also apply to Japanese Village.

Between the time the FEIS was issued and the time Metro

approved the Project on April 26, 2012, Metro conducted

additional analysis, and its experts estimated the extent to

which additional mitigation measures could reduce noise and

4 VdB is a measure of vibration in decibels. dBA is a measure of noise

in decibels.
18 JAPANESE VILLAGE V. FTA

vibration in Japanese Village. In advance of the meeting to

approve the Project, Metro recommended that additional

mitigation measures be adopted for Japanese Village,

including NV-19 (maintaining machinery); NV-21 (speed of

delivery trains); NV-22 (resilient mat); NV-23 (conveyor);

NV-27 (resiliently supported fasteners); and TR-1 (traffic

management). Ultimately, Metro approved the Project on

April 26, 2012, and the FTA issued its ROD, including the

MMRP described above, in June 2012.

On appeal, Japanese Village argues that Metro ignored

the advice of its experts because Metro did not actually vote

to approve the additional mitigation measures. Japanese

Village also argues that as a matter of law, relocation cannot

be used as a mitigation measure.

a. Whether Metro Adopted Mitigation Measures

Relying primarily on a transcript of Metro’s April 26,

2012 board meeting, Japanese Village argues that Metro’s

board voted to defer all mitigation measures rather than adopt

the additional measures its expert had recommended. We find

Japanese Village’s argument unpersuasive despite the lack of

clarityin the April 26, 2012 transcript, which contains several

references to “unintelligible” comments. Nevertheless, the

transcript indicates that the board voted to approve “Item A

through D as amended.” The board’s meeting minutes clarify

that “Item D” referred to utilizing additional noise and

vibration mitigation measures (NV-19, NV-21, NV-22, NV23, and NV-27, defined above) at Japanese Village.

Moreover, Attachment B to the ROD, “Summary of

Comments and Responses to Comments on the Final EIS,”

explicitly states: “Mitigation measures NV-19, NV-21, NV22, NV[-]23, NV-27, and TR-1 specifically apply to the
JAPANESE VILLAGE V. FTA 19

Japanese Village Plaza.” Japanese Village correctlypoints out

that a May 14, 2012 summary of the results of the board’s

April 26, 2012 action omits reference to the fact that

measures NV-19 and NV-27 apply to Japanese Village.

However, Appellees explain that this was simply a drafting

error.

If there were any doubt that Metro formally adopted the

proposed mitigation measures, those doubts were resolved on

December 15, 2015 when the FTA and Metro issued a Final

Supplemental Environmental Impact Statement. While the

primary goal of the FSEIS was to further analyze use of a

tunnel-boring machine along Lower Flower Street as ordered

by the district court, the FSEIS also corrects the earlier

drafting error and explicitly specifies that mitigation

measures NV-19, NV-21, NV-22, NV-23, and NV-27 apply

to Japanese Village. Japanese Village’s argument that Metro

has not adopted the corrected mitigation plan from 2015 is

unpersuasive because, as explained above, the most

reasonable reading of the record indicates that Metro adopted

the relevant mitigation measures even in 2012.

We also find unpersuasive Japanese Village’s argument

that Appellees failed adequately to analyze the effectiveness

of proposed mitigation alternatives. The March 28, 2012

expert study that Japanese Village asserts was overlooked by

Appellees estimates the reduction in noise and vibration that

proposed mitigation measures would provide.

In sum, we find that Appellees analyzed and adopted

additional mitigation measures for construction-related noise

and vibration in Japanese Village after the release of the

FEIS, and Appellees documented these measures in the June

2012 ROD. We conclude that the failure to see the need for
20 JAPANESE VILLAGE V. FTA

these mitigation measures at the time the FEIS was released

in January 2012, as evidenced by the fact that these measures

were analyzed and adopted later, did not violate NEPA.

b. Whether Relocation is a Permissible Mitigation

Measure

Notwithstanding the fact that Metro adopted measures to

mitigate construction-related noise and vibration, the parties

appear to agree that construction-related noise and vibration

may at least temporarily exceed federal standards in parts of

Japanese Village. Thus, it is quite possible that Appellees’

planned mitigation step of assisting residents and businesses

with temporaryrelocation will be necessary. Japanese Village

argues that relocation does not constitute mitigation as a

matter of law.

Japanese Village and Appellees both rely on the text of

the relevant NEPA regulation, which states:

Mitigation includes:

(a) Avoiding the impact altogether by not

taking a certain action or parts of an action.

(b) Minimizing impacts by limiting the degree

or magnitude of the action and its

implementation.

(c) Rectifying the impact by repairing,

rehabilitating, or restoring the affected

environment.
JAPANESE VILLAGE V. FTA 21

(d) Reducing or eliminating the impact over

time by preservation and maintenance

operations during the life of the action.

(e) Compensating for the impact by replacing

or providing substitute resources or

environments.

40 C.F.R. § 1508.20. Japanese Village argues that this list is

exclusive and that since relocation does not appear in

40 C.F.R. § 1508.20, it is not a valid mitigation measure.

Appellees argue that relocation could fall under subdivision

(e) of the regulation because relocation “provid[es]substitute

. . . environments” for displaced residents. Moreover,

Appellees argue, the regulation merely defines what

mitigation “includes.” Appellees argue that the regulation

permits mitigation measures that are not specifically

enumerated in the text.

The cases cited by Japanese Village do not directly

address whether relocation is a valid mitigation measure

under 40 C.F.R. § 1508.20 or NEPA generally. For example,

In re Katrina Canal Breaches Consolidated Litigation, No.

05-4192, 2011 WL 651946, at *4 (E.D. La. Feb. 11, 2011)

merely noted in dicta that one of the goals of a project was to

“avoid and minimize relocations and other impacts to local

residents and businesses to the maximum extent practicable.”

As Japanese Village notes, Friends of Richards-Gebaur

Airport v. FAA, 251 F.3d 1178 (8th Cir. 2001) dealt with the

relocation of airplanes, not people. Limerick Ecology Action,

Inc. v. U.S. Nuclear Regulatory Commission, 869 F.2d 719

(3d Cir. 1989), also cited by Japanese Village, simply noted

that agencies should consider socioeconomic impacts of

federal projects, including the impact of relocation. Finally,
22 JAPANESE VILLAGE V. FTA

the district court in Monarch Chemical Works, Inc. v. Exon,

452 F. Supp. 493, 500 (D. Neb. 1978) ruled that a project

required an EIS in part because of “the environmental

consequences of the relocation of an entire community.”

None of these cases addresses the definition of “mitigation.”

Japanese Village also argues that in cases in which

relocation is necessary, the government must complywith the

Uniform Relocation Assistance and Real Property

Acquisition Policies Act of 1970 (the “Relocation Act”),

42 U.S.C. §§ 4601 et seq. Japanese Village correctly points

out that courts have enjoined federal projects that fail to

comply with the Relocation Act. In a notice of errata filed

after Japanese Village filed its reply brief, however, Japanese

Village acknowledges that the EIS in the instant case actually

does consider the Relocation Act. For example, a page of the

Mitigation Monitoring and Reporting Program indicates that

“Metro shall provide relocation assistance and compensation

as required by the Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970.” Japanese Village

does not claim that Appellees have violated the Relocation

Act, so any argument that the Project could be enjoined on

that basis does not apply.

Ultimately, we need not decide whether relocation can

ever be a valid mitigation measure under NEPA because

“NEPA does not require that mitigation measures completely

compensate for the adverse environmental effects.” Conner,

848 F.2d at 1450. The Supreme Court’s example in

Robertson is instructive:

[I]t would not have violated NEPA if the

Forest Service, after complying with the Act’s

procedural prerequisites, had decided that the
JAPANESE VILLAGE V. FTA 23

benefits to be derived from downhill skiing at

Sandy Butte justified the issuance of a special

use permit, notwithstanding the loss of 15

percent, 50 percent, or even 100 percent of the

mule deer herd.

Robertson, 490 U.S. at 351. In the instant case, regardless of

whether relocation is considered a mitigation measure or a

source of harm, Appellees would not have violated NEPA as

long as they took a hard look at each alternative and

discussed the extent to which adverse effects can be avoided.

Not only did Appellees examine various noise and vibration

mitigation measures, Appellees also went beyond NEPA’s

procedural requirements and committed to implementing the

mitigation measures that Japanese Village requested.

2. Operational Noise and Vibration

Japanese Village next argues that Appellees violated

NEPA by not specifically requiring “isolated slab track”

technology (“IST”) to mitigate operational noise and

vibration from trains passing below Japanese Village. For socalled “Category 3” land uses such as the offices at Japanese

Village Plaza, federal vibration and noise guidelines for

“frequent” events such as a single train passing beneath are

75 VdB and 40 dBA respectively.

5 The vibration and noise

guidelines for “occasional” events such as two trains passing

at once are 78 VdB and 43 dBA. Id. In a March 2011 report,

Appellees’ engineers found that without mitigation,

operational noise (but not vibration) could exceed these

levels.

5

“Category 3” land uses include “quiet office or institutional

buildings,” while “Category 2” land uses include residential buildings.
24 JAPANESE VILLAGE V. FTA

To address operational noise and vibration, in the January

2012 FEIS, Appellees’ mitigation plan included the following

measures:

In the vicinity of the Hikari Lofts and

Nakamura Tetsujiro Building, Metro shall

conduct engineering studies during final

design to verify initial estimates of GBN and

shall implement high compliance resilient

fasteners, floating slab trackbed, or other

appropriate measures as needed to eliminate

impacts and to reduce GBN below FTA

annoyance criteria. (NV-28)

In the vicinity of the offices at JVP and the

Broad Art Foundation Museum, currently

under construction, Metro shall conduct

engineering studies during final design to

verify initial estimates of GBN and shall

implement high compliance resilient fasteners

or other appropriate measures as needed to

eliminate impacts and reduce GBN below

FTA annoyance criteria. (NV-29)

At the time of the FEIS, Appellees did not expect that IST

would be necessary.

As with the construction-related noise and vibration

analysis, however, an engineering report issued after the FEIS

suggested that without IST, the noise levels at Japanese

Village Plaza would exceed federal limits. Japanese Village

argues that it was an abuse of discretion for the FTA to

“ignore the most recent and reasoned reports from its experts”
JAPANESE VILLAGE V. FTA 25

and allow the use of mitigation means other than IST without

an appropriate explanation.

Japanese Village’s argument is unpersuasive for two

reasons. First, “an agency need not supplement an EIS every

time new information comes to light after the EIS is

finalized.” Marsh, 490 U.S. at 373. In this case, the January

2012 FEIS accounted for the possibility that “other

appropriate measures” could be taken “as needed to eliminate

impacts and reduce GBN below FTA annoyance criteria.”

Second, as with the mitigation measures Japanese Village

requested to reduce construction-related noise and vibration,

Appellees specificallyadopted IST for Japanese Village when

the Metro board approved the Project on April 26, 2012. The

meeting minutes reflect: “NV-27 – In the vicinity of the . . .

Japanese Village Plaza . . . Metro shall use resiliently

supported fasteners, isolated slab track technology, or other

appropriate measures as needed to eliminate impacts and to

reduce GBN below FTA annoyance criteria.” Attachment B

to the ROD states: “Mitigation measures NV-19, NV-21, NV22, NV[-]23, NV-27, and TR-1 specifically apply to the

Japanese Village Plaza.” Moreover, the December 15, 2015

Final Supplemental Environmental Impact Statement

explicitly states that mitigation measure NV-27, which

includes IST, applies to Japanese Village. Accordingly, to the

extent that Japanese Village complains about a lack of

implementation of IST (as opposed to a lack of discussion in

the FEIS), Japanese Village’s argument is now moot.

3. Subsidence

Japanese Village argues that Appellees’ plan to mitigate

potential building subsidence due to tunneling under Japanese

Village is not sufficiently detailed. Specifically, Japanese
26 JAPANESE VILLAGE V. FTA

Village argues that the FEIS should have explicitly required

that a 0.25 inch settlement in any building would trigger the

use of compensation grouting.

An EIS must “discuss mitigationmeasures, with sufficient

detail to ensure that environmental consequences have been

fairly evaluated.” S. Fork Band Council of W. Shoshone of

Nev. v. U.S. Dep’t of the Interior, 588 F.3d 718, 727 (9th Cir.

2009) (per curiam) (citation omitted) (internal quotation

marks omitted). In South Fork Band, we found an EIS

inadequate where it stated that “[f]easibility and success of

mitigation would depend on site-specific conditions and

details of the mitigation plan,” but the EIS omitted any

discussion of “whether the anticipated harms could be

avoided by any of the listed mitigation measures.” Id.

Japanese Village argues that Appellees’ MMRP improperly

defers analysis in favor of future studies and site-specific

investigation.

In the instant case, the MMRP includes three pages of

measures designed to combat building subsidence. One of the

measures included in the MMRP states, in relevant part:

GT-1: While engineering designs are being

finalized, but before any construction, a

survey of structures within the anticipated

zone of construction influence shall be

conducted in order to establish baseline

conditions. . . . If assessments indicate the

necessity to proactively protect nearby

structures, additional support for the

structures by underpinning or other ground

improvement techniques shall be required

prior to the underground construction. Metro
JAPANESE VILLAGE V. FTA 27

shall require the construction contractor to

limit movement to less than acceptable

threshold values for vertical, horizontal, and

angular deformation as a performance

standard. These acceptable threshold values

shall be established such that the risk of

damage to buildings and utilities will be

negligible to very slight. For buildings, these

threshold values will be based on the

relationship of building damage to angular

distortion and horizontal strain consistent with

Boscardin and Cording (1989) and qualitative

factors including but not limited to the type of

structure and its existing condition. . . .

Additional data and survey information shall

be gathered during final design for each

building and utilitymain to enable assessment

of the tolerance of potentially affected

structures and utilities.

Another mitigation measure in the MMRP states:

GT-2: Ground improvement such as grouting

or other methods shall be required to fill voids

where appropriate and offset potential

settlement when excess material has been

removed during excavation. The criteria for

implementing grouting or ground

improvement measures shall be based on the

analysis described in mitigation measure GT1.6

6 The MMRP also proposes additional mitigation measures labeled

GT-3 through GT-6.
28 JAPANESE VILLAGE V. FTA

These mitigation measures are not specific to Japanese

Village, and Japanese Village argues that the lack of

specificity does not allow for adequate evaluation of the

measures’ impact.

While, at first glance, these mitigation measures seem to

lack detail, the manner in which Appellees worked to develop

the measures shows that Appellees sufficientlyconsidered the

effectiveness of each proposal. After the FEIS was issued but

before the ROD was signed, Metro asked an expert to assess

the potential effects of underground construction on existing

Japanese Village buildings. The expert concluded that

without mitigation, three buildings in Japanese Village were

anticipated to have “moderate” to “very severe” damage due

to subsidence. The expert recommended that as “soon as

buildings show a settlement value approaching 0.25 inches,

compensation grouting would be activated under the building

in order to counteract tunneling settlement developing under

it.” The expert opined:

With the successful implementation of

compensation grouting, the settlement under

these buildings could be controlled to

acceptable levels. At the present level of

analysis, which is empirical settlement will

have to be limited to 0.25 inches for

“Negligible” damage, or 0.5 in. for “Slight”

damage, which by definition in practice nonstructural and cosmetically repairable.

This expert study, issued on April 9, 2012, was part of the

administrative record when Appellees issued their ROD in on

June 29, 2012. Unlike the EIS rejected in South Fork Band,

Appellees’ proposed mitigation measures, when viewed in
JAPANESE VILLAGE V. FTA 29

light of the analysis provided by Appellees’ expert, are

sufficient to allow for an evaluation of effectiveness. Thus,

we agree with the district court that Appellees’ analysis

satisfies the purpose of NEPA, “to ensure that agencies

carefully consider information about significant

environmental impacts.” N. Plains Res. Council, Inc. v.

Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011).

Our conclusion is also consistent with that of a recent case

cited in Japanese Village’s notice of supplemental authority.

In Protect Our Communities Foundation v. Jewell, 825 F.3d

571, 582 (9th Cir. 2016), we approved an EIS that included,

among other things, an “adaptive management plan” that

“provide[d] flexibility in responding to environmental

impacts through a regime of continued monitoring and

inspection.” While a mere promise to develop site-specific

mitigation measures in the future might not pass muster, “the

use of such a continuous monitoring system may complement

other mitigation measures, and help to refine and improve the

implementation of those measures as the Project progresses.”

Id.

For the reasons set forth above, we conclude that

Appellees’ plan to mitigate subsidence was not arbitrary and

capricious, an abuse of discretion, or otherwise in violation of

the law.

4. Parking

Finally, Japanese Village argues that Appellees failed to

adequately consider the increased demand that the new Little

Tokyo transit station will place on Japanese Village’s existing

parking structure. Because the new transit station will not

provide additional parking and will be located only 16 feet
30 JAPANESE VILLAGE V. FTA

from Japanese Village’s parking structure, Japanese Village

worries that the parking used by its employees and customers

will be overrun by rail commuters. While Japanese Village

acknowledges that Appellees conducted parking studies, it

argues that Appellees’ analysis of the impact on Japanese

Village’s parking structure—as opposed to other off-street

and on-street parking—was insufficient.

Appellees rely on several portions of the record to support

their argument that Appellees’ parking analysis was adequate.

For example, Appellees point out that they created a 160-page

transportation analysis study, which included extensive

discussion about the impact on parking. Appellees also cite

the Station Planning Toolkit, attached as Appendix J to the

FEIS, which notes that 600 additional parking spaces are

expected in Little Tokyo as part of a new mixed-use

development. The portion of Appellees’ analysis that seems

most directly responsive to Japanese Village’s concern about

off-street parking is in a paragraph in Chapter 4 of the FEIS:

Typically, privately-operated parking lots are

considered transitional land usesthat could be

developed by the owners for higher and better

uses. Several other privately-operated parking

lots and structures are located in the vicinity.

Loss of the current parking lot may cause an

inconvenience for users but it would not

represent a significant impact. Parking

demand in the area would be partially offset

by the increased public transit access

provided by the proposed project. However,

Little Tokyo residents and business owners

have indicated that parking spaces are

important community resources and that the
JAPANESE VILLAGE V. FTA 31

loss of this parking could negatively impact

the adjacent small businesses and the JANM

located across the street. The community is

concerned that this could, in turn, affect the

economic stability and ultimately the

character of the community. Therefore, prior

to construction of the alternative, Metro

would conduct an annual parking capacity

study of the Little Tokyo area during

construction to determine if there is sufficient

parking availability without these parcels.

Metro would also make a portion of the

Mangrove property available for valet

parking to offset the parking loss. This change

would not be a significant impact with respect

to displacements.

Another portion of the FEIS notes the “[p]ermanent

displacement of approximately270 off-street parking spaces”

due to the Project, approximately 130 of which are in Little

Tokyo. Among other things, Appellees argue that because

surface parking is a “transitional land use,” long-term parking

availability may decline even in the absence of the Project.

There are no NEPA thresholds for determining the

significance of parking impacts, and Japanese Village has not

cited any cases in which a court has found an EIS inadequate

for failure to consider increased demand on an existing

parking structure. The two district court cases on which

Japanese Village relies arguably support Appellees’ position

that their analysis was adequate. Japanese Village criticizes

Appelleesfor “philosophiz[ing]” that improved transit service

may reduce the need for parking. However, in California

Coastal Commission v. U.S. Department of the Navy, 22 F.
32 JAPANESE VILLAGE V. FTA

Supp. 3d 1081, 1103 (S.D. Cal. 2014), which Japanese

Village cites, the court noted that “increased public

transportation in the downtown areas” may reduce demand

for parking. Moreover, the court found the Navy’s parking

analysis sufficient even though the Navy found that the

parking impact of the project at issue “may be unmitigable.”7

Id. In Crenshaw Subway Coalition v. Los Angeles County

Metropolitan Transportation Authority, No. CV 11-9603

FMO (JCx), 2015 WL 6150847, at *26 (C.D. Cal. Sept. 23,

2015), the court affirmed an agency determination, based on

a parking survey, that a light rail project “will not result in a

significant impact because the combination of both on- and

off-street parking provides enough total parking spaces to

meet the demand in the area.”8 Here, as noted above, Metro

plans to “conduct an annual parking capacity study of the

Little Tokyo area during construction to determine if there is

sufficient parking availability.”

The only appellate case that we have found analyzing a

parking problem even somewhat similar to the one at issue

here, Chelsea Neighborhood Associations v. U.S. Postal

Service, 516 F.2d 378, 387–88 (2d Cir. 1975), held that an

EIS was inadequate in part because it failed to discuss where

800 residents and 1,500 employees of a planned mixed-use

development would park. As explained above, however,

Appellees in the instant case provided at least some analysis

of the Project’s parking impacts and likelymitigating factors.

7 The plaintiffs in California Coastal Commission sued under the

Coastal Zone Management Act, 16 U.S.C. § 1451 et seq., not NEPA. Id.

at 1086.

8

Japanese Village cited Crenshaw in its June 20, 2016 Letter of

Supplemental Authorities.
JAPANESE VILLAGE V. FTA 33

We conclude that Appellees’ analysis of off-street parking

impacts is sufficient to pass muster under NEPA. “NEPA

imposes no substantive requirement that mitigation measures

actually be taken . . . .” Robertson, 490 U.S. at 353 n.16.

Appellees estimated the number of parking spaces that could

be lost in Little Tokyo due to the Project, but they also

estimated the number of spaces that they expect the area to

gain from other development. Appellees discussed how

increased use of public transit would at least partially offset

the need for additional parking. Appellees also discussed

possible mitigation measures.9 The record indicates that

Appellees took the requisite “hard look” at the parking

impacts of the proposed Project before it was approved.

IV. BONAVENTURE CLAIMS

Bonaventure argues that Appellees (1) failed to analyze

Closed-Face TBM construction as a reasonable alternative

tunneling method for the Lower Flower portion of the Project

in the FEIS; (2) failed to adequately analyze certain impacts

and impermissibly deferred certain mitigation analyses in the

FEIS; and (3) failed to prepare a Supplemental EIS to analyze

nighttime construction. We address these arguments in turn.

9

Japanese Village claims that Metro declined to adopt a proposed

mitigation measure, TR-1, which would provide valet service to people

denied access to Japanese Village’s parking structure, among other things.

As explained in the section above on noise and vibration mitigation

measures, Metro actually did adopt mitigation measure TR-1, but this

measure was inadvertently left out of the FEIS and ROD. The December

2015 FSEIS corrects this oversight.
34 JAPANESE VILLAGE V. FTA

A. Analysis of Closed-Face TBM on Lower Flower

“The existence of a viable but unexamined alternative

renders an environmental impact statement inadequate.”

Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024,

1038 (9th Cir. 2008) (quoting Alaska Wilderness Recreation

& Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir.

1995)). An “agency must look at every reasonable alternative

. . . ,” id., but an “agency need not . . . discuss alternatives

similar to alternatives actually considered, or alternatives

which are ‘infeasible, ineffective, or inconsistent with the

basic policy objectives for the management of the area,’” N.

Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir.

2006) (quoting Headwaters, Inc. v. Bureau of Land Mgmt.,

914 F.2d 1174, 1180–81 (9th Cir. 1990)). For alternatives that

are “eliminated from detailed study,” agencies must “briefly

discuss the reasons for their having been eliminated.”

40 C.F.R. § 1502.14(a)

1. Feasibility Determination in the FEIS

Appellees addressed Closed-Face TBM in the FEIS,

adopting the construction technique for some parts of the

Project but rejecting it as infeasible south of 4th Street

because of three impediments: (1) the “pocket track”

requirement, (2) the requirement to preserve the option of

building a 5th and Flower Street station in the future, and

(3) the presence of “tiebacks.” “[T]echnical determinations of

the agency, reflecting the application of its specialized

expertise, merit particular deference . . . .” See Protect Our

Cmtys., 825 F.3d at 581 (finding that agency reasonably

excluded alternative after determining it would present

“significant feasibility issues”); see also Westlands Water

Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 871 (9th Cir.
JAPANESE VILLAGE V. FTA 35

2004) (finding that agencyhas discretion to reject alternatives

deemed ineffective for accomplishing project’s goals).

Despite the assessment in the FEIS, Bonaventure argues

that Closed-Face TBM was a viable alternative on Lower

Flower because the three impediments identified by

Appellees had been eliminated before issuance of the FEIS.

The record, however, does not show that the requirement to

preserve the option of building another station in the future

had been eliminated or that the issue of tiebacks had been

resolved by the time Appellees issued the FEIS. Therefore,

we find no basis for concluding that Appellees were arbitrary

or capricious in finding that Closed-Face TBM was not

feasible on Lower Flower.

a. Pocket Track Requirement

A “pocket track” is a third track with connecting switches

for train storage and passing located between two main tracks

and is used to enable quick recovery of the transit system

when a train has to be taken out of service. Crossover tracks

allow trains traveling in either direction on either track to

move to the other track and continue traveling in the same

direction without stopping and can be used to allow trains to

bypass a stalled train or turn back in the opposite direction.

Neither a pocket track nor a crossover track can be

constructed using Closed-Face TBM.

Bonaventure argues that Closed-Face TBM became

feasible for Lower Flower once the pocket track requirement

south of 4th Street was eliminated from the Project in 2011.

Appellees contend that although the pocket track requirement

was eliminated, it was replaced with a crossover track
36 JAPANESE VILLAGE V. FTA

requirement, which would similarly preclude use of ClosedFace TBM.

Although the record before us is somewhat ambiguous, it

seems that neither a pocket track nor a crossover track was a

Project requirement for Lower Flower by the time Appellees

issued the FEIS. The DEIS and SEA contemplate a pocket

track in the area of Lower Flower. But Metro’s April 2012

Draft Tunnel Study states that the pocket track requirement

was eliminated in December 2011 because “[c]rossovers in

the underground alignment would mitigate service delays and

a pocket or storage tracks could be used in adjacent project

locations . . . .” The FEIS itself states that a “pocket track,

which could also serve as a crossover, would be located

beneath Flower Street between 4th and 6th Streets,” but also

suggests that crossovers and pocket tracks “may not be

needed at all of [the listed] locations” and that the Flower

Street pocket track “is being considered for relocation as a

refinement to the Locally Preferred Alternative.”

Assuming that the pocket and/or crossover track

requirement had been eliminated or relocated, Appellees may

well have violated NEPA if they had relied solely on pocket

track incompatibility to find Closed-Face TBM infeasible on

Lower Flower. An agency “must look at every reasonable

alternative, with the range dictated by the nature and scope

of the proposed action.” Alaska Wilderness Recreation,

67 F.3d at 729 (emphasis added) (quoting Idaho

Conservation League v. Mumma, 956 F.2d 1508, 1520 (9th

Cir. 1992)). We need not decide that question, however,

because Appellees rejected the Closed-Face TBM as

infeasible on Lower Flower for two other reasons—namely,

the existence of tiebacks in the area and the Project
JAPANESE VILLAGE V. FTA 37

requirement to preserve the option of a future Flower/5th/4th

Street Station.

b. Flower/5th/4th Street Station

Bonaventure argues that Closed-Face TBM became

feasible in October 2010 when the Flower/5th/4th Street

station was dropped from the Project plan. This argument

ignores that the Project still required preservation of the

option to build a future Flower/5th/4th Street station. The

future station option—rather than the station itself—is

Metro’s stated reason for rejecting the Closed-Face TBM

alternative in the FEIS: “Using tunnel boring machine

construction would also create some challenges on the ability

of not precluding a 5th and Flower station as the alignment

would be changed from a box structure to separate bored

tunnels.”

Bonaventure suggests that the Project requirement for a

future station option was not adopted until April 26, 2012 and

was therefore not a legitimate reason to reject Closed-Face

TBM as infeasible in January 2012. The April 26, 2012 Metro

Board Meeting Minutes cited by Bonaventure list

“preserv[ing] the opportunity to install a future station north

of 5th and Flower Streets” as an approved amendment to the

LocallyPreferred Alternative, but the Minutes do not actually

show when the amendment was approved. The January 2012

FEIS itself states that “the design of the Locally Preferred

Alternative would not preclude a station at 5th and Flower

Streets from being built as a possible future, separate

project.” Therefore, the record does not establish that the

requirement to preserve a future station option had been

eliminated from the Project before the FEIS was issued.
38 JAPANESE VILLAGE V. FTA

c. Tiebacks

Tiebacks are temporary stabilization systems made out of

steel that were typically left in place after basement

construction in the area. In the DEIS, Appellees note that

such “obstructions would potentiallybe problematic for TBM

excavation on Flower Street due to the shallow depths of the

tunnels, which is partly why cut and cover construction is

planned for this area.” In the FEIS, Appellees stated that use

of TBM “south of 4th Street would not be practicable due to

the need to remove tie-backs ahead of the tunnel boring

machine.”

Bonaventure’s only evidence that Appellees did not

consider tiebacks to be an issue is Metro’s April 25, 2012

Draft Tunnel Study, which post-dates the FEIS and examines

a low-alignment option that Metro developed in response to

public comment on the FEIS. The profile of the lowalignment alternative examined in the Draft Tunnel Study “is

such that it is assumed to be below all of the existing tiebacks based on available information,” but Metro notes that

the low alignment option “would generate additional

impacts” and “require other project changes.”

There is no pre-FEIS evidence to show that Appellees

believed that the tiebacks impediment on Lower Flower could

be overcome by changing the alignment of the tunnel along

Lower Flower. In fact, when Metro studied the issue in 2011,

it concluded that it was “not possible to miss the tiebacks

with a profile change” because the Lower Flower tunnel

segment was “not long enough to permit a tunnel profile with

the tunnel grades required to get down under the tiebacks.”

We affirm the district court’s finding that Bonaventure has

made no showing of that Appellees were arbitrary and
JAPANESE VILLAGE V. FTA 39

capricious in rejecting the use of Closed-Face TBM on Lower

Flower in the FEIS.

2. Effect of Post-FEIS Feasibility Admission

After the FEIS was published, Metro accepted public

comment and continued to examine options for extending the

use of Closed-Face TBM on Flower south of 4th Street.

During a series of community stakeholder meetings in March

2012, Metro discussed the possibility of extending the use of

Closed-Face TBM by “deepening the vertical alignment to

avoid the 4th Street piling system foundation; resulting in

lowering the 2nd/Hope Street Station,” and “continu[ing] the

TBM configuration from 4th Street to just south of 5th Street,

assuming no or minimum tie-back encountered.” In a Draft

Tunnel Study dated April 25, 2012, Metro stated that it had

determined that “it was potentially possible to extend the

TBM tunneling to 5th Street, subject to economic feasibility,”

and had presented the low-alignment option to Metro’s Board

in March 2012. On April 26, 2012, Metro’s Board adopted its

staff’s recommendation to extend the use of Closed-Face

TBM to 5th Street, if it could be done within the Project’s

budget.

We agree with the district court that Appellees’ post-FEIS

admission of feasibility does not establish that the FEIS was

procedurally deficient.10

“[T]he role of a court in reviewing

the sufficiency of an agency’s consideration of environmental

factors is . . . limited . . . by the time at which the decision

10 Moreover, we note that Appellees included analysis ofClosed-Face

TBM at a deep alignment along Lower Flower in the December 2015

FSEIS. Even if Bonaventure’s claim had merit, this analysis would likely

render Bonaventure’s claim moot.
40 JAPANESE VILLAGE V. FTA

was made.” Vermont Yankee Nuclear Power Corp. v. Nat.

Res. Def. Council, Inc., 435 U.S. 519, 555 (1978).

Bonaventure argues that Vermont Yankee is distinguishable

because it involved a party seeking to reopen agency

proceedings that had been closed for over a year, while in this

case, Appellees admitted the feasibility of the alternative

before the FTA issued its record of decision.11 We are

cognizant, however, that “[a]dministrative consideration of

evidence . . . always creates a gap between the time the record

is closed and the time the administrative decision is

promulgated,” and if litigants could demand further analysis

each time “some new circumstance has arisen, some new

trend has been observed, or some new fact discovered, there

would be little hope that the administrative process could ever

be consummated in an order that would not be subject to

reopening.” Id. at 554–55 (quoting Interstate Commerce

Comm’n v. Jersey City, 322 U.S. 503, 514 (1944)); see also

Envtl. Def. Fund, Inc. v. Hoffman, 566 F.2d 1060, 1072 n.19

(8th Cir. 1977) (“[N]ot every addition to the EIS made in

response to comments is such as to require a formal

supplement to the EIS which must be processed in the same

fashion as a new EIS for to do so would make the NEPA

review process be one without end.”).

The “‘touchstone’ for courts reviewing challenges to an

EIS under NEPA ‘is whether an EIS’s selection and

discussion of alternatives fosters informed decision-making

and informed public participation.’” Westlands, 376 F.3d at

11 Bonaventure does not argue—and likely could not establish—that

Appellees’ post-FEIS resolution to extend the use of Closed-Face TBM

on Flower Street (budget permitting) constitutes a “substantial change”

requiring a supplemental EIS under 40 C.F.R. § 1502.9(c). Bonaventure

only challenges the sufficiency of the analysis in the FEIS.
JAPANESE VILLAGE V. FTA 41

872 (quoting California v. Block, 690 F.2d 753, 767 (9th Cir.

1982)). In this case, the process seems to have worked.

Appellees were not required to accept public comments after

publishing the FEIS. See 40 C.F.R. § 1503.1 (b) (“agency

may request comments on a final environmental impact

statement”) (emphasis added). Yet Appellees engaged in

continued dialogue with stakeholders and refined the Project

in response to community concerns. A finding that Appellees

were arbitraryand capricious in determining that Closed-Face

TBM was infeasible based solely on Appellees’ subsequent

admission that they were wrong is unlikely to foster informed

decision-making and public participation; rather it is likely to

discourage agencies from responding to post-FEIS public

comments in the future. See, e.g., Block, 690 F.2d at 771

(noting that “[i]f an agencymust file a supplemental draft EIS

every time any modifications occur, agencies as a practical

matter may become hostile to modifying the alternatives to be

responsive to earlier public comment”).

To the extent Bonaventure argues that Appellees’

eventual admission of feasibility establishes that Appellees

should have known Closed-Face TBM was technically

feasible on Lower Flower all along, the argument is a

substantive one and therefore “beyond the scope of our

review.” City of Carmel-By-The-Sea v. U.S. Dep’t of Transp.,

123 F.3d 1142, 1159 (9th Cir. 1997). As noted by the district

court, Bonaventure may have preferred that Appellees reach

a different conclusion in the FEIS, but that preference does

not establish that Appellees were arbitrary or capricious in

determining that the alternative was not feasible.

B. Adequacy of Analysis of Project Impacts and Mitigation
42 JAPANESE VILLAGE V. FTA

Bonaventure also challenges the sufficiency of the impact

analysis in the FEIS. “NEPA ‘does not mandate particular

results, but simply describes the necessary process that an

agency must follow in issuing an EIS.’” Westlands, 376 F.3d

at 865 (quoting Robertson, 490 U.S. at 349). “A court must

avoid passing judgment on the substance of an agency’s

decision. Its focus must be on ensuring that agencies took a

‘hard look’ at the environmental consequences of their

decisions.” Id. (quoting Robertson, 490 U.S. at 350).

Mitigation of environmental impacts must “be discussed in

sufficient detail to ensure that environmental consequences

have been fairly evaluated.” Carmel-By-The-Sea, 123 F.3d at

1154 (quoting Robertson, 490 U.S. at 353). An EIS, however,

“need not contain a ‘complete mitigation plan’ that is

‘actually formulated and adopted.’” Id. (quoting Robertson,

490 U.S. at 353).

1. Grade Separation Impact Analysis

Bonaventure is concerned about the impact of “grade

separation” between the concrete decking—which will cover

the trench created by cut and cover construction—and

existing sidewalk and driveway elevations. Bonaventure

argues that Appellees acknowledged the possibility of grade

separation in the FEIS, but then failed to quantify the possible

extent or analyze the impacts it may have on freeway and

garage access. The district court found that the FEIS satisfied

NEPA’s “hard look” requirement. We affirm.

The FEIS states that decking “may be either flush with the

existing street surface, or raised above the street surface with

Americans with Disabilities Act (ADA)-compliant ramps to

allow continued vehicle and pedestrian access.” The FEIS
JAPANESE VILLAGE V. FTA 43

also responds to public comments about the impacts of grade

separation:

• Anydecking configurations would require

construction of ADA-compliant ramps

and accesses as well as modifications to

vehicular access points to the garages and

driveway along Flower Street

• Any decking configurations would be

designed to safely accommodate the

undercarriage and overhead clearances of

vehicles using the driveways, garages, and

loading docks

• Access to and from the bus stop, shuttle

area, and mid-block pedestrian crossing

would be accommodated in any decking

configuration.

NEPA regulations require “only brief discussion of other

than significant issues.” 40 C.F.R. § 1502.2 (b) (“Impacts

shall be discussed in proportion to their significance.”). “As

in a finding of no significant impact, there should be only

enough discussion to show whymore study is not warranted.”

Id. Because Appellees explained that any “decking

configuration” would be designed to avoid significant

impacts, we are satisfied that no further discussion is

warranted. See Protect Our Cmtys., 825 F.3d at 583 (finding

NEPA’s “hard look” requirement satisfied where agency

“provided less analysis of noise effects in the EIS as

compared to other more significant or unmitigable

environmental impacts” because agency concluded that noise

effects could be effectively reduced).
44 JAPANESE VILLAGE V. FTA

Bonaventure claims that grade separation may result in

severe traffic congestion. Although the FEIS includes

extensive traffic impact analysis, the analysis does not touch

on grade separation. We find this to be consistent with

Appellees’ treatment of grade separation as not likely to

cause significant impacts; the traffic impact analysis need

only contain “a reasonably thorough discussion of the

significant aspects of the probable environmental

consequences.” Carmel-By-The-Sea, 123 F.3d at 1150

(emphasis added). Bonaventure cites no evidence that grade

separation will result in significant traffic impacts; we have

no reason to conclude, therefore, that Appellees were required

to take a harder look at the issue.

Bonaventure also objects that Appellees violated NEPA

by improperly deferring the choice of decking configurations

and indicating that environmental factors would not be

considered in making the choice: “Decking configurations

will be determined during the final design phase of the

project, based on cost, schedule, and construction activity

phasing considerations.” Having determined that there would

not be significant environmental impacts from grade

separation, Appellees did not act arbitrarily and capriciously

in deferring the configuration decision or selecting the listed

decision criteria in the FEIS. Moreover, we note that by the

time the Project was approved, it included a design

refinement stating that “South of 4th Street, construction

decking shall be no higher than 10[ inches], if feasible, above

the existing grade, and flush with existing curb on the east

and west side of Flower Street with a maximum cross

gradient of 3%.”
JAPANESE VILLAGE V. FTA 45

2. Emergency Vehicle Access Impact Analysis

Bonaventure is also concerned about the impact of

construction on emergency vehicle access to adjacent

properties, including the Westin Bonaventure Hotel.

Bonaventure argues that the analysis of such impacts in the

FEIS is conclusory and does not explain how the impacts

would be mitigated. At first glance, some of the discussion of

construction impacts on emergency response in the FEIS

appears conclusory. For example, Metro states that it “would

not allow construction activities to impede safe evacuation of

the buildings or access for emergency personnel at any time.”

But the FEIS contains further explanation of how such goals

would be achieved.

Appellees acknowledge that “[s]treet lane closures

associated with construction activities could result in

increased response times for emergency services (e.g., police

and fire)” and that “[a]ny increase in response times for

emergency services would be a potentially adverse

construction impact.” But the FEIS also discusses mitigation

of the impact of street closures:

Prior to the initiation of localized construction

activities, a traffic management and

construction mitigation plan shall be devised.

The closure schedules in the construction

traffic plan shall be coordinated to minimize

impacts to residences, business, special

events, and traffic flow. . . . [The] plan shall

identify, for instance, proposed closure

schedule and detour routes, [and] construction

traffic routes . . . . Traffic flow shall be

maintained, particularly during peak hours, to
46 JAPANESE VILLAGE V. FTA

the degree feasible. Access to adjacent

businesses shall be maintained at all times

during business hours, and to residences at all

times.

Appellees also indicate that “access to businesses would

be maintained during business operating hours throughout

construction . . . . Metro would keep entrances and exits clear

of obstructions and would ensure that adequate exit routes

and safe zones are maintained at all times during construction

. . .” Mitigation Measure SS-15 provides that “Metro shall

keep sidewalks, entrances to buildings, lobbies, corridors,

aisles, doors, or exits that remain in use by the public clear of

obstructions.” Appellees acknowledge “[i]t may not be

possible to keep all vehicular entrances to garages open at all

times during operating hours,” but state that “Metro would

ensure that access is provided via other vehicular entrances

during those times as part of its goal to maintain access to

businesses. Metro would coordinate with garage owners to

ensure safety and minimize inconvenience.”

Appellees further explain that Metro would coordinate

with emergency services “to provide appropriate safety and

security of the public using the Metro system, employees, and

the surrounding communities.” Appellees state:

Metro would coordinate construction

activities with emergency service personnel to

ensure that emergency services and response

times are not impacted, as indicated in Section

4.15.4.112of the Draft EIS/EIR. This

coordination has been included as mitigation

12 Neither party submitted or cited Section 4.15.4.1 of the DEIS.
JAPANESE VILLAGE V. FTA 47

measure number CN-2 in the Mitigation

Monitoring and Reporting Program for the

Locally Preferred Alternative (Chapter 8 of

this Final EIS/EIR).

And Mitigation Measure CN-2 states, “Early notification of

traffic disruption shall be given to emergency service

providers. Work plans and traffic control measures shall be

coordinated with emergency responders to prevent impacts to

emergency response times.” We are not persuaded that these

mitigation measures are insufficient.

Bonaventure argues that these mitigation measures

address only pedestrian access, not access for vehicles, but

Mitigation Measure TR-1 addresses “[t]raffic circulation

disruption” that “would occur during construction.”

Mitigation Measure SS-15 discusses safety and security

measures with respect to “public use of work areas involving

sidewalks, entrances to buildings, lobbies, corridors, aisles,

stairways, and vehicular roadways.”

Bonaventure argues that Appellees’ promise to maintain

access during “business operating hours” is not sufficient

because the Westin Bonaventure Hotel operates around the

clock. But elsewhere in the FEIS, Appellees note that “Metro

would maintain access to the hotel at all times during

operating hours . . . ,” and specifically explain that “business

operating hours” includes operating hours of “late-night

business such as the 24-hour gym.”

Bonaventure also argues that it is not helpful for

Appellees to provide access through “other vehicular

entrances” for the Westin Bonaventure Hotel because the

hotel’s only vehicular access is to Flower Street. We note that
48 JAPANESE VILLAGE V. FTA

Bonaventure does not maintain that the hotel has only a single

vehicular access point—Bonaventure’s statement merely

implies that all vehicular access points lead to Flower Street.

Bonaventure has not identified any particular impact that

would result from this circumstance—Metro could maintain

vehicular access to at least one of many Flower Street access

points during construction. Even in the unlikely event that

hotel has only a single vehicular entrance, nothing in the

FEIS suggests that Metro would not maintain access to that

entrance at all times—it clearly states that “[a]ccess to

adjacent businesses shall be maintained at all times during

business hours.”

Bonaventure claims that providing early notification to

emergency service providers does not address the loss of

access caused by the Project. As discussed above, Appellees

have explained how they will maintain access for emergency

vehicles, albeit potentially more limited access than usual.

Early notification to emergency services providers would

help to prepare the emergency service providers to navigate

the more limited access and thereby mitigate the impact of

the Project.

Therefore, we affirm the district court’s finding that the

FEIS includes reasonably thorough discussion of the impact

on access for emergency vehicles.

3. Deferred Monitoring and Mitigation Measures

Bonaventure contends that Appellees have impermissibly

deferred “myriad studies, surveys and mitigation plans” in

violation of NEPA. NEPA requires discussion of “mitigation

of reasonably likely impacts at the outset.” S. Fork Band,

588 F.3d at 727. The district court found that these mitigation
JAPANESE VILLAGE V. FTA 49

measures were not arbitrary and capricious, an abuse of

discretion, or otherwise not in accordance with the law. We

affirm.

Bonaventure argues that Mitigation Measures GT-1, NV2, TR-1, CN-3, and NV-13 are too vague because each

measure improperly call for measures that “shall” be

developed later:

• GT-1: “acceptable threshold values shall

be established such that the risk of

damage to buildings and utilities will be

negligible to very slight.”

• NV-2: “vibration monitoring plan shall be

developed.”

• TR 1: “traffic management and

construction mitigation plan shall be

devised.”

• CN-3: “[t]raffic management and

construction mitigation plan shall be

developed.”

• NV-13: “construction mitigation plan

shall prohibit noise levels generated

during construction from exceeding the

FTA construction noise criteria.”

The record shows, however, that in addition to proposing

adaptive management plans, Appellees studied baseline

conditions and conducted in depth analysis of the subsidence,

vibration, traffic management, and noise impacts of the
50 JAPANESE VILLAGE V. FTA

Project. The FEIS includes lengthy sections describing the

impacts on “Geotechnical/Subsurface/Seismic/Hazardous

Materials,” “Noise and Vibration,” and “Transportation.”

Furthermore, the challenged mitigation measures

themselves describe how the impacts will be monitored and

what Appellees intend to do in response:

• GT-1 explains that the subsidence

monitoring threshold is tied to “the

relationship of building damage to angular

distortion and horizontal strain consistent

with Boscardin and Cording (1989) and

qualitative factors including but limited to

the type of structure and its existing

condition.”

• NV-2 calls for “pre-construction surveys

of all buildings within 21 feet of vibration

producing construction activity” and

states that any damage will be repaired.

• TR-1 describes measures to notify and

coordinate with community members in

scheduling construction.

• CN-3 states that the traffic management

and construction mitigation plans will be

developed “in coordination with

community” and that “[c]rossing guards

and other temporary traffic controls shall

be provided . . . as appropriate to maintain

traffic flow during construction.”
JAPANESE VILLAGE V. FTA 51

• NV-13 involves monitoring using “FTA

construction noise criteria” and listing a

varietyof mitigation techniques to be used

as needed in response to monitoring,

including noise barriers, alarms/warning

procedures, and mufflers.

As in Protect Our Communities, these mitigation

measures describe “adaptive management” plans that would

provide “flexibility in responding to environmental impacts

through a regime of continued monitoring and inspection.”

825 F.3d at 582; see also City of Sausalito v. O’Neill,

386 F.3d 1186, 1210–11 (9th Cir. 2004) (finding “hard look”

requirement satisfied where FEIS included detailed analysis

of traffic concerns and specifically provided “for ongoing

traffic monitoring and a ‘Traffic Management Plan’ to set

‘specifications on construction traffic scheduling, proposed

haul routes, construction parking, staging area management,

visitor safety, detour routes, and speed controls”).

C. Supplemental EIS for Nighttime Construction

According to Bonaventure, Appellees were required to

prepare a supplemental EIS because Metro applied for noise

ordinance variances to accommodate nighttime construction

on Lower Flower after the issuance of the FEIS. The district

court found that no supplemental EIS was required. We

affirm.

A supplemental EIS is required if (a) the “agency makes

substantial changes in the proposed action that are relevant to

environmental concerns;” or (b) there are “significant new

circumstances or information relevant to environmental

concerns and bearing on the proposed action or its impacts.”
52 JAPANESE VILLAGE V. FTA

40 C.F.R. § 1502.9(c). A supplemental EIS is not required if

“(1) the new alternative is a ‘minor variation of one of the

alternatives discussed in the draft EIS,’ and (2) the new

alternative is ‘qualitativelywithin the spectrum of alternatives

that were discussed in the draft [EIS].’” Russell Country

Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1045 (9th Cir.

2011) (quoting published guidance from Council for

Environmental Quality publications). Like EIS compliance,

an agency’s decision on whether to supplement is controlled

by the “arbitrary and capricious” standard. See Marsh,

490 U.S. at 375–76.

Section 41.40 of the Los Angeles Municipal Code

prohibits any construction during certain nighttime hours

without a permit. On April 16, 2012, Metro applied to the

Board of Police Commissioners for nighttime noise variance

“to accommodate the construction of necessary utility

relocations” along Lower Flower and in several other Project

areas. Metro requested permission to work from 9:00 pm to

7:00 am, Monday through Friday, and 6:00 pm to 7:00 am,

Saturday through Monday. Id. The application indicated that

work would start on June 1, 2012 and take approximately 1.5

years. “Understanding that the variance could not be granted

for that length of time,” Metro requested a six-month permit,

indicating that it would request periodic extensions. Metro

listed several activities as within the scope of work, such as

surveying and traffic control, sawcutting, trenching and

shoring, infrastructure installation, backfilling, and paving.

Bonaventure argues this application is a substantial change

because decking and pouring concrete are the only nighttime

activities discussed in the FEIS—not sawcutting, trenching,

shoring, or infrastructure installation. Bonaventure also

argues that FEIS only contemplated nighttime construction
JAPANESE VILLAGE V. FTA 53

over short, limited period, while the requested permits would

allow for 24/7 construction over 1.5 years.

The Lower Flower variance application does not imply

new plans for nighttime construction. The FEIS and DEIS

already indicated that utility relocations might require

“complex construction sequences and schedules,” lasting up

to four months on each two-block segment, but that “[s]treet

closures would generally be limited to nighttime, weekend,

and/or off peak closures and must be authorized by the local

jurisdiction.” The FEIS notes that the Municipal Code

prohibits nighttime construction without a variance and states

that the contractor would “be responsible for consistencywith

the goals of the applicable local ordinance as it applies to all

equipment to the job or related to the job.” These statements

are consistent with the application for a variance for

nighttime construction associated with utility relocation that

Metro submitted for Lower Flower. Furthermore, the four

variance applications in the administrative record all list the

same construction activities for the same time period, which

suggests that Metro was seeking blanket authorization for

utility relocation activities—not that utility relocation would

go on continuously for 1.5 years in any one particular area.

Moreover, the FEIS already accounts for the noise and

light impacts of possible nighttime construction: “This

analysis considered both daytime and nighttime construction

activities using the procedures and criteria for a general noise

assessment presented in Chapter 12 of the FTA guidance

manual (USDOT 2006).” Noise measurements were obtained

at the Westin Bonaventure—including 24-hour noise

measurements. And mitigation techniques, such as “[h]igher

performance mufflers” for nighttime construction “near

sensitive land uses” were discussed. The FEIS indicated that
54 JAPANESE VILLAGE V. FTA

“nighttime lighting would predominantly consist of security

lighting, and light would be directed on-site,” and therefore

would not cause “adverse or significant” impacts. Even if the

variance application were to constitute a substantial change

in the Project, no Supplemental EIS would be required

because the change would not affect the environment “to a

significant extent not already considered.” Marsh, 490 U.S.

at 374; see also Russell Country Sportsmen, 668 F.3d at 1049

(finding no supplementation required because there was “very

little reason to believe the modified travel plan will have

environmental impacts that the agency has not already

considered”).

V. CONCLUSION

For the reasons set forth above, the district court’s grant

of summary judgment in favor of Appellees on all claims is

AFFIRMED.

IT IS SO ORDERED.