Opinion
2:22-cv-02113 KJM AC PS
11-02-2023
ALAN MILLER, Plaintiff, v. TAHOE REGIONAL PLANNING AGENCY, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Plaintiff is proceeding in this action pro se and the case was accordingly referred to the undersigned by Local Rule 302(c)(21). This case is brought pursuant to the Tahoe Regional Planning Compact, P.L. 96-551, 94 Stat. 3233 (“Compact”) and, as an action for review on the administrative record, is governed by Federal Rule of Civil Procedure 65 and Local Rule 261. The parties filed the required cross-motions for summary judgment. ECF No. 28 (plaintiff's motion); ECF No. 35 (defendant's motion). For the reasons set forth below, the undersigned recommends that plaintiff's motion be DENIED, defendant's motion be GRANTED, that judgment be entered for defendant and the case be closed.
Plaintiff also moves to supplement the administrative record. ECF No. 29. Defendant opposed that motion, ECF No. 31, and plaintiff replied. ECF No. 32. For the reasons set forth below, the motion to supplement the record is DENIED. Finally, plaintiff moves to exceed page limits in his reply brief. ECF No. 37. That motion is GRANTED and all of plaintiff's briefing has been fully considered.
I. Complaint
Plaintiff challenges a discrete action of defendant Tahoe Regional Planning Agency (“TRPA”)'s Governing Board to deny plaintiff's administrative appeal of the Executive Director's approval of a plan revision (“the Plan Revision”) for a cell tower project (the “Project”). Per plaintiff's description, the Project involved TRPA granting an exception to its own regulations that prevent excavation exceeding five feet, to prevent interference with a belowground water table. ECF No. 28 at 1. Plaintiff does not allege that he challenged the Project approval itself; he asserts only that he appealed the approval of the Revision, which approved deepened excavation from 7.5 to 13.5 feet and doubled the amount of material removed for the tower from 25 to 50 cubic yards. He alleges that his appeal was arbitrarily and capriciously denied by the TRPA Governing Board. Id.
The TRPA contends that substantial evidence in the administrative record demonstrates that, due to the soil profile at the Project site, groundwater was neither anticipated nor encountered during the excavation. ECF No. 35 at 2. It further contends that because plaintiff does not identify any prejudicial abuse of discretion by TRPA, his summary judgment motion should be denied and TRPA's cross-motion for summary judgment should be granted. Plaintiff makes twelve separate claims of violative conduct, though the ultimate question before the court is whether the Governing Board's denial of plaintiff's appeal was supported by substantial evidence and therefore not a “prejudicial abuse of discretion” within the meaning of Article VI(j)(5) of the Tahoe Regional Planning Compact (“the Compact”).
II. Legal Background
In 1968, California and Nevada entered the Tahoe Regional Planning Compact, which was approved by Congress in 1969. League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 739 F.Supp.2d 1260, 1265 (E.D. Cal. 2010) (Karlton, J.), affd in part, vacated in part, remanded, 469 Fed.Appx. 621 (9th Cir. 2012). The Compact was amended and ratified by Congress in 1980. Public Law 96-551, 94 Stat. 3233 (1980). Congress approved an additional amendment in 2016. Public Law 114-322, 130 Stat. 1628, sec. 3603 (2016). The Compact requires TRPA to establish environmental threshold carrying capacities and to adopt and enforce a Regional Plan to achieve and maintain those thresholds. Compact at Art. I(b). An “environmental threshold carrying capacity” is “an environmental standard necessary to maintain a significant scenic, recreational, educational, scientific or natural value of the region or to maintain public health and safety within the region.” Compact at Art. II(i). TRPA must regulate the region to achieve these thresholds “while providing opportunities for orderly growth and development consistent with such capacities.” Compact at Art. I(b).
For ease of reference, the Compact as amended can be located at https://www.trpa.gov/wp-content/uploads/documents/archive/1/Bistate Compact.pdf
The Compact also directs the agency to adopt and administer ordinances, rules, and regulations. Art. I(b). In compliance with that instruction, TRPA has adopted a Code of Ordinances (“Code”) to implement the Regional Plan's Goals and Policies, and Rules of Procedure (“ROP”), which set standards for how the agency operates and how certain processes are carried out. TRPA amends the Code and ROP from time to time. Id. The Compact provides that TRPA “shall interpret and administer its plans, ordinances, rules and regulations in accordance with the provision of this compact.” Art. I(c). Like the Compact, TRPA's duly adopted ordinances, rules, and regulations themselves have the legal status of federal law. Lake Tahoe Watercraft Recreation Ass'n v. Tahoe Reg'l Plan. Agency, 24 F.Supp.2d 1062, 1068-69 (E.D. Cal. 1998)
Code: https://www.trpa.gov/wp-content/uploads/TRPA-Code-of-Ordinances.pdf. ROP: https://www.trpa.gov/wp-content/uploads/documents/Rules-of-Procedure.pdf.
Any development project approved by TRPA must comply with the Regional Plan and applicable ordinances, rules and regulations established by the agency. Compact at Art. III(g)(2). Under TRPA's Code of Ordinances, all new construction in the Lake Tahoe basin that “may have a substantial effect on the land, air, water space, or any other natural resources in the Tahoe region” must undergo review and approval by TRPA. Code at §2.1.2. The Executive Director has authority to modify project approvals. See ROP 5.15; AR 1586-1587. Under Code §2.1.2, all activities in the Lake Tahoe basin that “may have a substantial effect on the land, air, water space, or any other natural resources in the Tahoe region” are “projects subject to TRPA review and approval.” Any development project approved by TRPA must comply with the Regional Plan and applicable ordinances, rules and regulations established by the agency. Compact at Art. VI(b). Project applications are reviewed by TRPA staff, with some permits being issued by the Executive Director, some applications considered by a Hearings Officer, and some heard by the Governing Board, depending on the type of project at issue. See Code §2.2.2.
The governing body of TRPA is its Governing Board, which consists of 15 members- seven from California, seven from Nevada and one non-voting Presidential Appointee. Compact at Art. III. The Governing Board adopts all ordinances, rules, and regulations that are necessary to effectuate the adopted regional plan. Id. at Art. VI(a). The Board meets once per month at a noticed public meeting. Id. at Art. III(d). TRPA has an Executive Director who is appointed by the Governing Board and oversees TRPA staff who, among other skills, have planning expertise. Id. at Art. IV(a). TRPA's Code creates a means to appeal an Executive Director or Hearings Officer decision to the Governing Board. Code at §2.2.2(G)(3). TRPA's Rules set forth procedures for appeal, which include: a deadline to file a notice of appeal (ROP §11.2); the mandatory contents of the statement of appeal (ROP §11.4); the deadline for filing the statement to have the appeal heard on the next Governing Board agenda (ROP §11.4); the requirement that the Executive Director prepare a staff position paper (ROP §11.6.1, referencing ROP §5.11.2); the appeal hearing process (ROP §11.8.2, referencing ROP §5.13); and the scope of the Governing Board's authority to affirm, modify or revoke the Executive Director's action (ROP §11.6.2).
The Governing Board has a five-member Legal Committee that serves in an advisory capacity. Among other responsibilities, the Legal Committee hears presentations regarding administrative appeals and makes recommendations to the Governing Board. AR 3398-3429. “If the Board determines to hear the appeal [of a project approval], it may take action to modify or revoke the approval by the same affirmative vote as would have been required to approve the matter before the Board. Failure to take such action shall be deemed a denial of the appeal.” ROP §11.6.2.
III. Legal Standard
The final action of the Governing Board is subject to judicial review, and the Compact contains provisions specifying who may obtain judicial review of agency decisions, which decisions are reviewable, and the standard by which a court conducts that review. Compact at Art. VI(j).
Legal actions arising out of or alleging a violation of the provisions of this compact, of the regional plan or of an ordinance or regulation of the agency or of a permit or a condition of a permit issued by the agency are governed by the following provisions:
This subdivision applies to:
(A) Actions arising out of activities directly undertaken by the agency.
(B) Actions arising out of the issuance to a person of a lease, permit, license or other entitlement for use by the agency.
(C) Actions arising out of any other act or failure to act by any person or public agency.Id.
The Compact makes judicial review available to an “aggrieved person,” which it defines as “any person who has appeared, either in person, through an authorized representative, or in writing, before the agency at an appropriate administrative hearing to register objection to the action which is being challenged, or who had good cause for not making such an appearance.” Compact at Art. VI(j)(3). The Compact also sets specific deadlines for filing a judicial review action:
[Actions] arising out of the adoption or amendment of the regional plan or of any ordinance or regulation of the agency, or out of the granting or denial of any permit, shall be commenced within 60 days after final action by the agency. All other legal actions shall be commenced within 65 days after discovery of the cause of action.Art. VI(j)(4).
The Compact specifies the standard of review. For a legal challenge to an “adjudicatory act or decision of the agency to approve or disapprove a project,” the Court's standard of review is for a “prejudicial abuse of discretion,” which means “the agency has not proceeded in a manner required by law or if the act or decision of the agency was not supported by substantial evidence in light of the whole record.” Art. VI(j)(5). The reviewing court may not “exercise its independent judgment on evidence.” Id. That adjudication uses the vehicle of summary judgment does not alter this standard:
[W]hen a party seeks review of agency action .. [before a district court], the district judge sits as an appellate tribunal... [t]he entire case on review is a question of law, and the complaint, properly read actually presents no factual allegations, but rather only arguments about the legal conclusion to be drawn about the agency action. Thus, “[this Court's] review ... is based on the agency record and limited to determining whether the agency acted arbitrarily or capriciously.Herguan Univ. v. Immigration & Customs Enf't, 258 F.Supp.3d 1050, 1063 (N.D. Cal. 2017) (internal quotations and citations omitted) (interlineations in the original).
The Court must look at “the judicially noticed record” to determine whether TRPA's procedures provided “substantial evidence” of compliance with the Compact language. Comm. For Reasonable Regulation Of Lake Tahoe v. Tahoe Reg'l Planning Agency, 365 F.Supp.2d 1146, 1159 (D. Nev. 2005). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). “Substantial evidence supports the [agency's] findings when ‘they logically arise from the facts. They need not be the only result which could so arise.'” Olsen v. Nat'l Transp. Safety Bd., 14 F.3d 471, 474 (9th Cir. 1994) (quoting Meik v. NTSB, 710 F.2d 584, 586 (9th Cir. 1983)). Even if a challenger presents “rival” evidence, a reviewing court “must not second-guess the particular way the agency chooses to weigh the conflicting evidence or resolve the dispute.” ASARCO, Inc. v. Occupational Safety & Health Admin., 746 F.2d 483, 490 (9th Cir. 1984) (quoting United Steelworkers of America v. Marshall, 647 F.2d 1189, 1263 (D.C.Cir. 1980)).
IV. Administrative History
Unless otherwise specified, the following facts are either expressly undisputed by the parties or have been determined by the court, upon a full review of the record, to be undisputed by competent evidence.
1. The Initiation of the Cell Tower Project
In March of 2019, non-party Sacramento Valley Limited Partnership, doing business as Verizon Wireless (“Verizon”), applied to TRPA for a permit to erect a cell tower at 1360 Ski Run Blvd. in South Lake Tahoe (“the Project”). On August 27, 2019, TRPA issued its Soil Hydrologic Approval Waiver, which provided:
The Tahoe Regional Planning Agency (TRPA) staff has reviewed the Soils/Hydrologic Scoping Report Application submitted in association with a monopine cell tower and equipment shelter. The proposed excavation is 7 feet 6 inches below ground surface. It is not expected that groundwater will be encountered in this location and the excavation is allowed pursuant to TRPA Code of Ordinances Sections 33.3.6.A.2.a (accommodation of engineering requirements for above-ground structures) and 33.3.6.A.2.d (public health and safety). Please note that it is possible that variations in the soil or groundwater conditions could exist that are different than what has been investigated or reported. If conditions are found to be wetter than expected, contact TRPA immediately to discuss options for dewatering.AR 0047. Verizon's geotechnical engineer did a soil boring to 19 feet below ground surface, with no groundwater encountered. AR 0030.
TRPA's Hearings Officer approved the application on October 14, 2021, and TRPA issued the permit. AR 1586. The approved Project allowed for an excavation depth of 7.6 feet below ground surface. AR 0019. However, in the permit, TRPA foresaw the potential need to alter the depth of excavation when design and engineering plans were finalized by including the following Special Condition 3.F:
Please provide final engineering drawings, including a detailed foundation design. TRPA has approved an excavation depth of 7 feet 6 inches below ground surface (bgs). If the final design includes an excavation depth deeper than that, the applicant shall submit a new soils-hydro application to TRPA, seeking approval for the proposed excavation depth. TRPA shall approve the excavation prior to stamping the final plans.AR 1585. Plaintiff did not file an administrative appeal of the Project approval (AR 1586), and the time to do so has long-since passed. See Compact at Art. VI(j)(4).
2. The Plan Revision
On January 3, 2022, Verizon sought a Plan Revision to allow for an excavation depth of 13.5 feet below ground surface. AR 0055-0056. Verizon submitted revised plans, an updated structural analysis and geotechnical investigation report, and the application for the plan revision. AR 0064-0227, 0237-0241. On August 5, 2022, TRPA issued a Revised: Soil Hydrologic Approval Waiver, which except for the authorization for a deeper excavation, contained the same language as the original Soil Hydrologic Approval Waiver:
The Tahoe Regional Planning Agency (TRPA) staff has reviewed the Soils/Hydrologic Scoping Report Application submitted in association with a monopine cell tower and equipment shelter. The proposed excavation is 13.5 feet below ground surface. It is not expected that groundwater will be encountered in this location and the excavation is allowed pursuant to TRPA Code of Ordinances Sections 33.3.6.A.2.a (accommodation of engineering requirements for aboveground structures) and 33.3.6.A.2.d (public health and safety). Please note that it is possible that variations in the soil or groundwater conditions could exist that are different than what has been investigated or reported. If conditions are found to be wetter than expected, contact TRPA immediately to discuss options for dewatering.AR 0269; compare AR 0019. TRPA issued the revised permit with the greater excavation depth on August 17, 2022. AR 0666-0678. Excavation work occurred in late August and early September 2022. AR 1586.
3. Plaintiff's Appeal Of The Revision To The Governing Board And Request For Stay
On August 22, 2022, plaintiff appealed the Plan Revision to the Governing Board and requested a stay. AR 0731-0755. Verizon filed a response. AR 0886-0959. Pursuant to TRPA ROP §11.3, the Governing Board Chair reviewed the material submitted by the parties, consulted with TRPA staff, and issued a limited stay of the pouring of concrete for the tower foundation until the TRPA Governing Board could hear plaintiff's appeal at its September 28, 2022 hearing. AR 1182. The partial stay also indicated that TRPA would monitor the excavation using a qualified soils consultant, and although not anticipated, should groundwater be intercepted during the excavation, required that Verizon cease the excavation immediately and consult with TRPA. Id.
4. Observations Of The Excavation By A Certified Professional Soil Scientist
During the excavation, TRPA contracted with a Certified Professional Soil Scientist to observe the soil conditions and look for signs of groundwater. AR 1269-1271, 1362. The soil scientist made two observations: the first at approximately the depth initially approved for the Project, and the second upon completion of the 13.5-foot excavation approved in the Plan Revision. AR 1269-1271, 1362. As indicated in the Soil Hydrological Investigation summary of findings, no groundwater was observed after partial excavation was completed. AR 1269. Additionally, based on the granitic bedrock encountered during the excavation, the soil scientist did not anticipate that the groundwater table would be encountered within the requested excavation depth of 13.5 feet. AR 1269. After the excavation to 13.5 feet was completed, during the soil scientist's second observation, “there were no indicators of groundwater.” AR 1362.
5. The Governing Board's Denial Of Plaintiff's Appeal
Plaintiff filed his Statement of Appeal. AR 1283-1360. Verizon filed a response. AR 1520-1577. The Governing Board's Legal Committee heard plaintiff's appeal on September 28, 2022. AR 3357 (audio file). The Staff Report recommended denial of the appeal, citing the soils and hydrology report that showed no groundwater to at least 19 feet below ground surface, a point that plaintiff never challenged. AR1584-1589. After presentations by staff, plaintiff, and Verizon, the Legal Committee unanimously recommended that the appeal be denied. AR 33313357, 3398-3410. The Governing Board heard the appeal the same day and, after presentations by staff, plaintiff, and Verizon, followed staff's recommendation and voted to deny plaintiff's appeal. AR 3358-3397, 3422-3429. This lawsuit followed.
6. Lawsuit Procedural Background
Plaintiff initiated the instant action on November 23, 2022. ECF 1. He filed a first amended complaint on January 25, 2023. ECF No. 7. TRPA answered on March 28, 2023 (ECF Nos. 17, 18) and lodged the administrative record on May 11, 2023. ECF 22, 23. The undersigned held a status conference on June 7, 2023 (ECF No. 26) and gave plaintiff leave to file a motion to supplement the record either prior to, or concurrently with, his motion for summary judgment pursuant to Local Rule 261. ECF No. 27. On July 24, 2023, plaintiff filed his motion for summary judgment (ECF No. 28) and a motion to supplement the record (ECF 29). On August 2, 2023, TRPA opposed the motion to supplement the record. ECF 31. On August 29, 2023, the parties filed a stipulation and proposed order to extend summary judgment deadlines, which the Court granted on August 30, 2023. ECF 33, 34. TRPA opposed the summary judgment motion and filed its cross-motion for summary judgment pursuant to Local Rule 261 on September 20, 2023. ECF No. 36
V. Motion to Supplement the Record
As a preliminary matter, the undersigned must address plaintiff's motion to supplement the administrative record, as it goes to the adequacy of the record supporting the decision on summary judgment. Because plaintiff challenges an administrative agency action, this case qualifies as an action for review on an Administrative Record in a non-social security case, and is therefore governed by Local Rule 261. The Administrative Record was filed on May 11, 2023. ECF No. 22. Plaintiff, by his motion, seeks leave of court to supplement the Administrative Record to include (1) a Freedom of Information Act (FOIA) request letter from plaintiff concerning the lack of oaths taken by TRPA Board members; (2) TRPA's FOIA response letter to plaintiff regarding his oath of office question; (3) TRPA's FOIA response letter to plaintiff regarding questions about electronic device record storage; (4) TRPA's FOIA response letter to plaintiff notifying plaintiff it was processing his request for public records; and (5) plaintiffs preliminary thoughts on settlement. ECF No. 29, Exhibits 1-5.
Under the Administrative Procedures Act, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” See 5 U.S.C. § 702. When considering an APA case, the district court “review[s] the whole record or those parts of it cited by a party.” See 5 U.S.C. § 706. Review is presumptively limited to “the administrative record already in existence.” See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-43 (1985) (internal quotation and citation omitted). When an agency compiles and submits the administrative record, that record is entitled to a presumption of regularity. Goffney v. Becerra, 995 F.3d 737, 748 (9th Cir. 2021); Pinnacle Armor, Inc. v. United States, 923 F.Supp.2d 1226, 1232 (E.D. Cal. 2013). The court presumes the agency properly defined and compiled the administrative record absent “concrete evidence” that the agency omitted documents or materials that it considered when making its decision. Pinnacle Armor, 923 F.Supp.2d at 1239 (quoting Sara Lee Corp. v. Am. Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C.2008)).
The Ninth Circuit has recognized narrow exceptions to the general rule limiting reviewing courts to the administrative record in all APA cases, including “(1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith.” Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (internal quotations omitted).
Plaintiff asserts that extra-record discovery is necessary because the issue regarding oaths of office renders all official acts of the TRPA null and void. ECF No. 29 at 2. Plaintiff also makes allegations regarding TRPA's bad-faith record publication policies and subterfuge regarding electronic records. Id. at 9-10. The gravamen of plaintiff's motion is an argument that the agency acted in bad faith. He concludes by arguing that the suggested supplements to the record make it “clear that the TRPA is a highly corrupt and incompetent agency that set out to deliberately deprive me and the public of the right to an unbiased tribunal, the right to see evidence and public comments, particularly in opposition to me, and the right to have adjudication based on a public record that is visible, accurate and complete.” Id. at 18. TRPA opposes the motion to supplement the record, arguing that the documents submitted by plaintiff are outside the scope of the court's review in this case and that plaintiff has not identified any bad-faith agency action to warrant record supplementation. ECF No. 31 at 4-9. The undersigned agrees with defendant that the record does not require supplementation in this case.
A. Oath of Office Concern Does Not Demonstrate Bad Faith
Plaintiff's assertion that TRPA's Board members have not taken an oath of office does not justify supplementing the administrative record. As explained in TRPA's response to plaintiff's FOIA request, because TRPA's Governing Board members are officials for the governmental entities that appointed them, and serve at the pleasure of those entities, no independent oath of office to serve on the TRPA is required. ECF 29 at Ex. 2; see also Compact Art. III(a) (explaining the required Governing Board member appointments from each state). Governing Board members sometimes provide copies of the oath they took for their respective agencies to TRPA, and TRPA provided copies of those documents to plaintiff. See ECF 29, Ex. 2. The Compact does not require Governing Board members to take oaths of office. See, Compact at Art. III. Nothing in the documents provided by plaintiff indicates that TRPA acted inappropriately or with bad faith, and there is no reason to supplement the record with these documents.
B. The Administrative Record Already Contains Public Comments
Plaintiff alleges that that TRPA demonstrated bad faith by failing to publish on its website the public comments regarding his appeal located at ¶ 2113-3330, so that the public could see them prior to his appeal hearing. ECF No. 29 at 6. As plaintiff acknowledges, because these documents are already in the administrative record, there is nothing to supplement. Because the administrative record contains the public comments at issue, plaintiff fails to identify a deficiency in the record.
C. There is No Concrete Evidence of the Existence of Additional Relevant Documents
Plaintiff asserts his suspicion that TRPA Board members received calls, messages, or emails regarding his appeal on their personal electronic devices, which TRPA did not search and include in the certified Administrative Record. ECF No. 29 at 7, 10-12. Plaintiff's assertions are unsupported by evidence and are insufficient to overcome the presumption that the record is complete. TRPA's lodging of the Administrative Record is supported by the Declaration of Katherine Huston Authenticating and Certifying the Administrative Record. ECF No. 23 at 16. Plaintiff has not identified any specific document that he knows of or reasonably understands to exist which is not included in the record; hunches and suspicions are not enough.
Good cause appearing, IT IS HEREBY ORDERED that supplemental discovery and supplementation of the record are not necessary. Plaintiff's motion (ECF No. 29) is DENIED and the case proceeds to the merits on the administrative record as filed by defendant.
VI. Summary Judgment Analysis
Plaintiff presents twelve claims which he contends demonstrate the invalidity of the TRPA's action regarding the construction of the Verizon cell tower. ECF No. 28. Each claim is addressed independently below, listed as titled by plaintiff in his motion.
A. Claim 1: “August 5, 2022 Exception Letter”
Plaintiff alleges that the TRPA violated a Code requirement at §33.3.6.A.2, which states that “TRPA may approve exceptions to the prohibition of groundwater interception or interference if TRPA finds that: a. Excavation is required by the International Building Code (IBC) or local building code for minimum depth below natural ground for above ground structure . . it is necessary for the public safety and health.” by approving an exception “without substantial fact-finding therein that the deepened excavation would not interfere with groundwater.” ECF No. 28 at 1. Plaintiff asserts the TRPA's exception decision is arbitrary and capricious because it merely cites applicable code sections, states the project meets code requirement, and makes only one material finding regarding ground water that was based on a cursory investigation carried out by the permittee's contractor in 2019. ECF No. 28 at 7, citing AR 00046. Plaintiff states that his own engineering assessment and findings presented in his affidavit demonstrate that the decision was arbitrary and capricious, pointing the court to the administrative record. ECF No. 28 at 7, citing AR 0738-0473, 0753-0755, 0168.
Defendant refutes plaintiff's claim, first by asserting that plaintiff mischaracterized TRPA's action by stating that it approved an “exception to . [the] prohibition” of groundwater interception or interference contained in Code §33.3.6.A.2, ECF No. 28 at 6-7, because TRPA's actual finding when approving the Plan Revision that no interception or interference was likely. AR 0269. TRPA argues it reasonably reached this conclusion based on the 19-foot soil boring taken by Verizon's geotechnical engineer in which no groundwater was encountered, the soil profile, and the reports and plans submitted by Verizon. AR 0030, 1584-1585. TRPA also explains that it took two steps to address the situation in the unlikely event groundwater was encountered. First, it retained a Certified Professional Soil Scientist to observe a two-step excavation (i.e., the first observation when the excavation reached approximately the 7.6-foot depth approved in the Project permit and the second observation when the excavation reached the 13.5-foot depth approved in the Plan Revision). AR 1269-1271, AR 1362. The soil scientist confirmed that TRPA's finding was correct and that no groundwater was encountered at either step. Id. Second, TRPA required that Verizon immediately cease excavation should groundwater be observed. AR 1182. Because TRPA's technical conclusion was that groundwater would not be encountered, and in any event, it required excavation to halt should Verizon have encountered groundwater, none of the Code exceptions were needed. See Code §33.3.6.A.2. TRPA continues to argue that even if the exceptions were implicated, TRPA correctly identified two that would apply: accommodation of engineering requirements for above-ground structures (Code §33.3.6.A.2.a) and public health and safety because the cell tower will close a necessary gap in coverage for first responders (Code §33.3.6.A.2.d). AR 0269, 1589, 1899-1909, 1980-1988.
The undersigned agrees with TRPA that the Executive Director's findings are well supported by substantial evidence, and when denying plaintiff's appeal, the staff report and presentation to the Governing Board pointed to this record evidence. AR 1587-1589, 3419. Plaintiff's contention that he presented countervailing evidence (ECF No. 28 at 3-4, 7) does not undermine the fact that substantial evidence to support TRPA's decision. A decision meets the substantial evidence standard so long as a reasonable mind might accept that the evidence supports the conclusion, even if there might also be evidence to support a different conclusion. Olsen, 14 F.3d at 474. The Compact is clear that the court cannot reweigh or make an independent judgment on the evidence; “the scope of judicial inquiry shall extend only to whether there was prejudicial abuse of discretion.” Compact at Art. VI(j)(5). The claim as presented does not demonstrate that TRPA's decision was unsupported; instead, the record demonstrates that TRPA's decision was based on ample evidence in the record. TRPA is entitled to summary judgment on this claim.
B. Claim 2: “Late Response for Stay Request”
Plaintiff asserts that the TRPA violated TRPA's ROP §11.3, which requires the Governing Board Chair to “review any request for a stay of a project or matter and the evidence submitted therewith, and . . . within two working days of the request, [decide] whether or not a stay shall be issued,” when it received his stay request on August 22, 2022 and responded on August 24, 2022 that a partial stay was granted. ECF No. 39 at 8-9. Plaintiff asserts the late response was in bad faith and deprived him his due process rights and placing him “in extreme and unanticipated hardship to prepare [a] Statement of Appeal” for the hearing, which was “illegally scheduled by the Chair” on September 29, 2022. Id. at 8.
First, the court agrees with defendant's assertion that this claim is moot because there is no available remedy with respect to TRPA's delayed response. Though TRPA responded a day late, it did issue a partial stay and timely scheduled a hearing; there is no further relief for the court to order related to the one-day delay in response time. “If there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction.” Ruvalcaba v. City of L.A., 167 F.3d 514, 521 (9th Cir. 1999). Though plaintiff makes the conclusory statement that the delay resulted a due process violation, he does not explain what constitutionally protected interest was at stake or how he suffered any actual harm. A plaintiff who seeks to invoke the protections of the Fourteenth Amendment “must establish” that a constitutionally significant interest in life, liberty, or property “is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “The deprivation of a procedural right to be heard . . . is not actionable when there is no protected right at stake.” Shanks v. Dressel, 540 F.3d 1082, 1092 (9th Cir. 2008). Plaintiff does not identify, and the court is not aware of any constitutionally protected interest created by TRPA's ROPs, and thus, plaintiff does not establish a constitutional violation. Further, in this case, plaintiff's appeal was heard and acted upon, albeit one day late, and the undersigned finds that TRPA substantially complied with the ROPs. TRPA is entitled to summary judgment on this claim.
C. Claim 3: “Advancement of Appeal Hearing Date”
Plaintiff contends that TRPA violated his due process rights and ROP §§ 11.2 and 11.4, by setting his appeal hearing too soon. ECF No. 28 at 8-9. As explained above, there is no constitutional right arising from TRPA's Rules. Further, ROP §§11.2 and 11.4 do not limit TRPA's ability to set a hearing date, but rather impose certain deadlines on the appellant to get the appeal hearing scheduled. Indeed, ROP §11.3 anticipates that an appeal hearing will be scheduled for the next Governing Board meeting when a stay is requested: “The appellant may request, as part of the written statement of appeal, a stay of the project or matter, and any such request shall be by affidavit or under penalty of perjury and shall include credible evidence of the need for a stay pending a hearing on the appeal before the Board at its next regular meeting.” Plaintiff's contention that TRPA “advanced” the appeal hearing to “assist Verizon to complete the foundation” before the end of grading season in October is unsupported. ECF No. 28 at 9. TRPA is entitled to summary judgment on this claim.
D. Claim 4: “Requirements for a Complete Project Application”
Plaintiff alleges that the TRPA approved the plan revision even though the application was missing many required elements and was therefore incomplete. ECF No. 28 at 9. TRPA explains that it treated Verizon's Plan Revision as minor and not requiring the submission of an entirely new project application that meets all application requirements of ROP §5.2. ECF No. 35 at 15. TRPA explains that it did so because it had already considered the entire project application when approving the Project, which occurred just a few months before Verizon submitted the Plan Revision request. AR 1586-1587, 3413. For that reason, when considering the Plan Revision application, TRPA asked only for the additional information it needed to evaluate the specific proposed change. AR 0059, 0066-0233, 0888, 1586-1587, 3413. The court agrees with TRPA that substantial evidence in the record supports this discretionary decision (see id.), and plaintiff has failed to identify any prejudicial abuse of discretion in TRPA's determination that a duplicative submission was not warranted.
Further, this claim is outside the scope of the court's review. ROP §5.2 does not create a third-party cause of action to challenge the completeness of an application because the question on judicial review is whether substantial evidence supported the Governing Board's rejection of plaintiff's appeal of the Plan Revision, not the adequacy of the application itself. See Compact Art. VI(j)(5). TRPA is entitled to summary judgment on this claim.
E. Claim 5: “Application Signer in Perjury”
Plaintiff alleges that there is no signature on the application as required by the ROPs, and even if there were a signature, it was perjured because the application was incomplete, and the applicant could not truthfully state that the application was complete to the best of their knowledge. ECF No. 28 at 10. As discussed above, the application was not incomplete, and a challenge to the adequacy of the initial application is outside the proper scope of the court's review. Regardless, the record is clear that Verizon's authorized representative, Michelle Fernandes, digitally signed the Plan Revision application with a dated timestamp. AR 0238. Plaintiff does not present any evidence that this signature was perjured or issued in bad faith. TRPA is entitled to summary judgment on this claim.
F. Claim 6: “Incomplete Application: Missing Initial Environmental Checklist”
Plaintiff's sixth claim for relief, like Claim 4, challenges the completeness of the application, this time addressing the absence of an initial environmental checklist. ECF No. 28 at 10. As with Claim 4, summary judgment in TRPA's favor is required because TRPA's Rules do not create a private right of action to challenge the contents of an application, and substantial evidence supported the Plan Revision no matter whether another Initial Environmental Checklist (“IEC”) was submitted. See supra §III.C.4 and 5.
TRPA's Rules require supplemental environmental review for a project revision only if that revision involves new significant environmental effects not otherwise considered. See, e.g., ROP §6.15.1 (Grounds for Supplemental EIS); see also AR 1587-1588, 3413. The record reflects that TRPA staff found that no interception or interference with groundwater would occur due to the 6-foot increase in excavation depth. AR 3412-3413. Therefore, no significant adverse environmental impacts from the Plan Revision were anticipated to occur that might require a supplemental IEC. AR 1587, 3413. Plaintiff does not identify any prejudicial abuse of discretion arising from TRPA's determination that a second IEC was unnecessary. Finally, the court finds TRPA's determination was consistent with other environmental review cases, which hold that a new environmental document is not required for project modifications that amount to minor variations on the alternatives discussed in the original EIS, or that are qualitatively within the spectrum of alternatives discussed within the original EIS. See Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 854 (9th Cir. 2013); City of Las Vegas, Nev. v. Fed. Aviation Admin., 570 F.3d 1109, 1117 (9th Cir. 2009); Klamath Siskiyou Wildlands Ctr. v. U.S. Forest Serv., 52 F.Supp.3d 1089, 1098-99 (E.D. Cal. 2014). TRPA is entitled to summary judgment on this claim.
G. Claim 7: “No Environmental Review Determination”
This claim is substantially similar to Claim 6, except that it addresses the lack of an Environmental Review determination in the project revision. ECF No. 28 at 11. The claim fails for the same reasons outlined above. The TRPA is entitled to summary judgment on this claim.
H. Claim 8: “Incomplete Application: Missing Necessary Reports”
In this claim, plaintiff again takes issue with the completeness of the application, but specifically addresses the fact that the TRPA treated the proposed revision as minor such that prior project reports could be used. ECF No. 28 at 12. Plaintiff argues that TRPA abused its discretion in accepting the 2019 revised geotechnical report that had been previously submitted, arguing that the report fails the standard outlined in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Id. The Daubert standard has to do with the adequacy of proffered scientific evidence for presentation to a jury, and is irrelevant here. This is a judicial review of an agency decision, the substantial evidence standard applies, and nothing in this claim demonstrates that there was a lack of substantial evidence supporting the agency decision. See Compact at Art. VI(j)(5). TRPA is entitled to summary judgment on this claim.
I. Claim 9: “Prohibition of Excavation Interference with Ground Water Table”
Plaintiff's ninth claim for relief is duplicative of Claim 1. ECF No. 28 at 14. Because substantial evidence supported TRPA's conclusion that there would be no interception of groundwater with the revised excavation depth, and TRPA properly exercised its discretion to employ protections to confirm this conclusion, Claim 9 fails as a matter of law. TRPA is entitled to summary judgment on this claim for the same reasons as those discussed above in relation to Claim 1.
J. Claim 10: “Conflict of Interest Violations”
Plaintiff asserts that TRPA's retention of a consulting Certified Professional Soil Scientist to observe the excavation constituted a conflict of interest per ROP §8.4, which provides that “[e]mployees shall not accept secondary employment, nor accept present compensation or arrange for future compensation for services already performed or to be performed, that give rise to an actual conflict of interest or that create an appearance of a conflict of interest.” ECF No. 29 at 14. As defendant explains, this provision is designed to prevent employees from seeking supplemental employment or compensation that creates a conflict of interest with their TRPA duties. Here, to provide additional oversight and ensure no interference with or interception of groundwater, TRPA retained a third-party soils consultant (not, as plaintiff asserts, a “subordinate employee”) to observe the excavation. AR 1269-1271, 1362. The consultant provided reports that confirmed no groundwater was encountered. AR 1269, 1362. Plaintiff does not identify any employee who accepted compensation within the meaning of ROP §8.4 or who did anything other than perform the employee's job duties. Thus, TRPA is entitled to summary judgment on this claim.
K. Claim 11: “Impervious Land Converge in Excess of Limitations”
Claim 11 posits that TRPA improperly approved revised construction plans beyond allowable land coverage limitations. ECF No. 28 at 15. Plaintiff asserts that he did his own coverage computations, but TRPA staff was unable to understand the engineering analysis he presented for the record, resulting in error. Id. at 15-16. Plaintiff alleges that the AR demonstrates that TROP provided no valid refutation of his coverage analysis. Id. at 16. TRPA counters that it rebutted plaintiff's contentions in the staff report to the Governing Board (AR 1972-1979, inclusive of audio file) and at the appeal hearing (AR 3420), noting that in making his calculations, plaintiff appeared to have misread the four separate profile perspectives in the approved plans, resulting in overstatement of the coverage calculation for the cell tower footing. AR 1973. Staff specifically annotated the plans to confirm for the Governing Board the accuracy of TRPA's coverage calculation. AR 1974-1979. Regardless, TRPA is entitled to summary judgment on this claim because the court is required to defer to TRPA's calculations and cannot exercise independent judgment on this evidence. Compact Art. VI(j)(5).
L. Claim 12: “Illegal Appeal Hearing Voting Procedure”
Plaintiff's twelfth claim for relief seems to argue that Governing Board should have required four votes from each state's members to adopt a variance procedure, rather than nine votes total, with five from California, where this project is located. ECF No. 28 at 16-17. Even if the court were to accept plaintiff's argument, there would be harmless error at most. Plaintiff only obtained one vote in his favor for his appeal, with six California Board members and five Nevada Board members voting against his appeal. AR 3426. Thus, the alternative voting procedure urged by plaintiff would not have altered the outcome. Id. Because it would not change the result, any error was harmless. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). TRPA is entitled to summary judgment on this claim.
VII. Conclusion
In the interest of justice and judicial economy, plaintiff's motion for administrative relief to exceed page limits (ECF No. 37) is GRANTED and all of plaintiff's filings have been considered. Plaintiff's motion to supplement the record (ECF No. 29), is DENIED for the reasons explained above.
Further, IT IS RECOMMENDED that plaintiff's motion for summary judgment (ECF No. 28) be DENIED, that defendant's motion for summary judgment (ECF No. 35) be GRANTED and that this case be CLOSED.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED.