UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE NEW RIVER VALLEY GREENS;

THE SIERRA CLUB; THE NEW RIVER

VALLEY ENVIRONMENTAL COALITION,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF

TRANSPORTATION; FEDERICO F. PENA,

Secretary of Transportation;

FEDERAL HIGHWAY ADMINISTRATION; No. 96-2545

RODNEY SLATER, Administrator,

Federal Highway Administration,

Defendants-Appellees,

and

ROBERT E. MARTINEZ, Administrator,

Virginia Department of

Transportation,

Defendant.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CA-95-1203-R)

Argued: August 12, 1997

Decided: November 17, 1997

Before RUSSELL and HALL, Circuit Judges, and MICHAEL,

Senior United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Matthew Dean Pethybridge, PAINTER, KRATMAN,

PETHYBRIDGE, WINDELL & CRENSHAW, Blacksburg, Virginia,

for Appellants. Edward John Shawaker, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON

BRIEF: Lois J. Schiffer, Assistant Attorney General, John T. Stahr,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

I. Chronology

A. Factual

In June 1990, the Virginia Department of Transportation

("VDOT") began planning the construction of a five mile stretch of

highway in the Ellett Valley near Blacksburg, Virginia. As envisioned, the road would relieve local traffic congestion along U.S.

Route 460, provide a more direct route from Roanoke to Blacksburg,

and serve as a test facility for development of a new "intelligent vehicle/highway system." This stretch of highway, nicknamed the "Smart

Road," ultimately would include sensors in the road and possible

magnetic levitation and monitoring systems to assist drivers in vehicle

navigation.

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Because the highway was to be constructed and financed, in part,

with Federal monies, the National Environmental Policy Act

("NEPA"), 42 U.S.C. § 4321 et seq. , applied to the project. Pursuant

to the Act's requirements, VDOT promulgated a Draft Environmental

Impact Statement ("DEIS") on August 20, 1991, made it available to

the public the next day, and, thereafter, held public hearings on it to

receive citizen commentary. On March 5, 1993, VDOT issued the

project's Final Environmental Impact Statement ("FEIS") which the

Federal Highway Administration ("FHWA") approved on March 26,

1993.

On May 2, 1994, the United States Fish and Wildlife Service

("FWS") informed the FHWA that a certain endangered plant, the

smooth coneflower, had been found in the project area. As a result of

the discovery, VDOT proposed a 750 foot shift in the final route of

some two miles of the Smart Road. On June 5, 1995, the FWS issued

a biological opinion concluding that this slight relocation of the road

along the new "southern alignment" would pose no threat to the continued well-being of the endangered flower.

In response to this partial redirection of the road, the defendants

issued an "Addendum" to the FEIS in September 1995. The Addendum's purpose was to assess whether the altered alignment of the

road would produce any significant new environmental repercussions.

The Addendum concluded that because the environmental implications of the road's partial realignment were minor, preparation of a

Supplemental Environmental Impact Statement ("SEIS") was unnecessary under the NEPA. The Addendum was released on October 5,

1995.

B. Procedural

The plaintiffs, environmental activists in the Blacksburg area,

brought this action on November 15, 1995. They alleged, inter alia,

that defendants1 violated the NEPA by preparing the Addendum to

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1 By Order of April 10, 1996, the district court dismissed The Honorable Robert E. Martinez, Virginia Secretary of Transportation, as a party

to the suit. The United States Department of Transportation, the FHWA,

and their employees remain defendants.

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the FEIS in lieu of a SEIS and by originally using inadequate bird,

wildlife and plant surveys in drafting the FEIS.

On February 23, 1996, the district court issued a pretrial Order

which, among other things, established May 8, 1996 as the court's

deadline for the plaintiffs to file any motion to supplement the administrative record and established June 10, 1996 as the deadline for the

parties to file any motion for summary judgment. On June 10, 1996,

the New River Valley Greens ("Greens") filed a motion for summary

judgment and a supporting memorandum of law, attached to which

were three affidavits from purported "experts" stating the need for a

SEIS. On July 8, 1996, the FHWA moved to strike the affidavits and

other exhibits appended to the Greens' summary judgment motion.

The court by Order of August 9, 1996 granted the motion to strike,

finding that the plaintiffs' attempt to supplement the administrative

record with the affidavits was untimely and in violation of the pretrial

order.

On October 1, 1996, the district court granted defendants' July 3,

1996 motion for summary judgment2 as to all counts in the complaint.

By the same Order and accompanying Memorandum Opinion, the

court denied plaintiffs' motion for summary judgment. Plaintiffs take

the instant appeal from that decision.

II. Standards of Review

As to questions of law, including the district court's grant of summary judgment to defendants, review is de novo . Scarborough v.

Ridgeway, 726 F.2d 132, 135 (4th Cir. 1984). Summary judgment

here issued following the district court's review of an informal agency

decision. Thus, the "arbitrary and capricious" standard of district court

review under the Administrative Procedure Act ("APA"), 5 U.S.C.

§ 706(2)(A), applies to this court on review of a grant of summary

judgment. Overstreet v. Kentucky Central Life Ins. Co., 950 F.2d 931,

938 (4th Cir. 1991); United States v. Carolina Transfer Co., 978 F.2d

832, 835 (4th Cir. 1992). As to factual conclusions reached by the district court, review is for clear error. Hendricks v. Central Reserve Life

Ins. Co., 39 F.3d 507, 512 (4th Cir. 1994).

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2 Defendants had received an extension of time from the court to file

the motion.

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III. The National Environmental Policy Act's Mandates

A. Supplemental Environmental Impact Statement

Section 102 (2)(C) of the NEPA, 42 U.S.C. 4332(2)(C) requires the

preparation of Environmental Impact Statements,"in every. . . major

Federal action[ ] significantly affecting the quality of the human environment. . . ." Federal regulations interpreting the NEPA state, in pertinent part, that agencies:

[s]hall prepare supplements to either draft or final environmental impact statements if . . . [t]here are significant new

circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

40 C.F.R. § 1502.9(c)(1) (emphasis added).

Plainly, not every new circumstance is a "significant new circumstance" requiring a SEIS. Rather, as this court has stated, "`the new

circumstance must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.'" Hughes River Watershed Conservancy v. Glickman, 81 F.3d

437, 443 (4th Cir. 1996) (emphasis added) (quoting Hickory Neighborhood Defense League v. Skinner, 893 F.2d 58, 63 (4th Cir. 1990)).

Hughes requires only that agencies continue to take a "hard look" at

the environmental consequences of their proposed projects even after

preparation of an initial environmental impact statement; the case

does not stand for the proposition that any change to a project mandates the preparation of a SEIS. 81 F.3d at 443 (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989)).

Here, the route of the Smart Road was shifted a mere 750 feet

southward over the course of a two mile stretch in order to accommodate the endangered smooth coneflower. While certain other new

circumstances3 may have resulted from the modified route, they

hardly presented the "seriously different picture of the environmental

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3 Plaintiffs cited below as other"significant new circumstances" resulting from the slight modification in the Smart Road route: (1) noise

impacts to twenty-nine residences as opposed to the twenty-five cited in

the FEIS, (2) the relocation of six families rather than the two mentioned

in the FEIS, and (3) an increase from 120 to 140 acres of Agricultural

and Forestal land to be acquired for the project.

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impact" of the project necessary to demand the preparation of a SEIS.

Indeed, were the NEPA actually to require a SEIS when a modified

project's new environmental impact is patently insignificant, it ". . .

would render agency decisionmaking intractable, always awaiting

updated information only to find the new information outdated by the

time a decision is made." Marsh, 490 U.S. at 373.

Because the Smart Road's environmental impact remained virtually unchanged after the road's shifted alignment, the defendants'

decision to prepare an Addendum to the FEIS rather than a SEIS was

neither arbitrary, capricious nor contrary to the requirements of the

NEPA. Consistent with Hughes, supra, the defendants met their obligation to continue to take a "hard look" at the environmental consequences of the Smart Road when they issued the Addendum to the

FEIS.

B. The Adequacy of the Final Environmental Impact Statement

Plaintiffs allege that the defendants' analysis of the Smart Road's

impact on birds, wildlife, and plants was arbitrary and capricious

because the scientific data incorporated into the FEIS came from

atlases and other reference sources several years old at the time. Specifically, with respect to the bird data collected for the FEIS, the

Greens argue that data from an atlas was between five and ten years

old at the time of the FEIS. Reliance by the defendants on such

slightly dated information, however, cannot be said, as a matter of

law, to have been irrational, arbitrary or capricious. The plaintiffs

adduced no evidence below that local bird populations had changed

so drastically between publication of the data in the reference sources

and that data's incorporation into the FEIS as to render the data inherently unreliable or archaic.

With respect to wildlife, the plaintiffs do not point to any actual

effect on fauna that was not considered in the FEIS. 4 Finally, after

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4 In a November 6, 1991 letter to the defendants, for example, the FWS

comments that no further explication of the area's well-known wildlife

is required. The letter was incorporated into the FEIS at section VII. Of

course, once the existence of the endangered coneflower later was made

known to defendants, the Addendum was appended to the FEIS. As well,

two alternative routes for the road, alternatives 7 and 10, which might

have impacted endangered species of local fish in the Roanoke River, in

fact, were not chosen.

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issuance of the FEIS and after the discovery of the coneflower, no

fewer than four additional plant surveys were conducted. These additional plant surveys, likewise, cannot be said to have been inadequate,

as a matter of law.

C. Plaintiffs' Untimely Attempt to Supplement

the Administrative Record

This court defers to the right of a district court to set and enforce

the discovery deadlines. Here, the court established May 8, 1996 as

the deadline for the parties to submit evidence to supplement the

administrative record. The Greens violated the February 23, 1996

scheduling order when they filed the three affidavits at issue on June

10, 1996, more than one month late. For this reason, the district court

acted within its sound discretion when it granted defendants' motion

to strike this untimely submitted additional evidence.

IV. Conclusion

For the foregoing reasons, we hold that the district court properly

granted summary judgment in favor of defendants and against plaintiffs on all NEPA claims. It is so ordered.

AFFIRMED

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