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The Supreme Court of Canada (“SCC”) released on Friday, November 13th its much awaited decision in 407 ETR,¹ in which it upheld the decision of the Ontario Court of Appeal, and ruled that Section 22(4) of the Highway 407 Act is constitutionally inoperative to the extent that it is used to enforce a provable claim that has been discharged pursuant to section 178(2) of the Bankruptcy and Insolvency Act.
Licence denial regimes and their interaction with the Bankruptcy and Insolvency Act (“BIA”) have been the subject of a long-lasting debate in Canadian jurisprudence, with decisions falling on both side of the fence. Today, the SCC released 407 ETR, discussed below, and the companion case of Alberta v. Moloney,² two decisions providing welcome clarification of the state of the law.
In 407 ETR the SCC ruled, by a majority of seven and with two concurring in the result, in favour of the Superintendent of Bankruptcy (the “Superintendent”).
The majority found an operational conflict between the enforcement scheme of section 22 of the Highway 407 Act (“407Act”) and section 178(2) of the BIA. Gascon J., writing for the majority, said that the toll debts collected by 407 ETR Concession Company Limited (“ETR”) constitute a claim provable in bankruptcy and that pursuant to section 178(2) of the BIA, creditors cease to be able to enforce their provable claims upon the bankrupt’s discharge. The majority held that it is impossible for ETR to use the administrative enforcement scheme of section 22(4) of the 407 Act while also complying with s. 178(2) of the BIA.
The majority also held that compliance could not be achieved by the debtor’s paying the released debt or by foregoing his right to a vehicle permit, saying that this would be a situation of compliance with one law, and renunciation of the operation of the other, by one of the actors involved.
The majority and minority agreed that the operation of section 22(4) of the 407 Act also frustrates Parliament’s purpose of providing discharged bankrupts with the ability to financially rehabilitate themselves that underlies section 178(2) of the BIA. The majority said that it is the intent of this section that “the debtor will no longer be encumbered by the burden of pre-bankruptcy indebtedness.”³ Section 22(4) of the 407 Act frustrates this purpose by allowing ETR to continue burdening a discharged bankrupt.
Accordingly, the SCC dismissed ETR’s appeal.
Highway 407, one of Toronto’s arterial roads, is a public-private partnership between the Government of Ontario and ETR. Matthew David Moore (“Moore”), a truck driver, accrued a large debt ($34,977.06) to ETR in relation to the toll applicable to the use of Highway 407. As a result of Moore’s failure to pay his indebtedness, ETR sent notices of the non-payment to the Registrar of Motor Vehicles, which in turn refused to renew Moore’s vehicle permits, all pursuant to section 22(4) of the 407 Act.
Subsequently, Moore made an assignment into bankruptcy in November 2007 and received his absolute discharge in June 2011. After receiving an absolute discharge, Moore obtained from the Registrar in Bankruptcy (the “Registrar”) a declaration that the debt to ETR was released in order to be able to retrieve his vehicle permit.
However, ETR contested and the motions judge set aside the Registrar’s order on the basis that there was no operational conflict between s. 22(4) of the 407 Act and section 178(2) of the BIA.
Despite the fact that Moore settled his debt with ETR and forfeited his right to appeal, the Superintendent took over the case in order to seek clarification from the higher courts on this long-lasting debate over licence denial regimes in the context of bankruptcy.
The Court of Appeal concluded that the order of the motions judge should be set aside. In its decision, the Court addressed the question of whether the two statutory schemes could co-exist in the limited context of a discharged bankrupt, holding that they could not and that federal paramountcy applied.
On the first branch of the paramountcy test, the Court of Appeal held that there was no operational conflict between the two statutes. Moore could forego obtaining a vehicle permit and not pay the toll debt to ETR, or he could pay the debt and obtain a vehicle permit. Because Moore is not required to pay the debt and the BIA does not require him to obtain a vehicle permit, the Court said, there is no impossibility of dual compliance. With respect to ETR, although section 178(2) of the BIA bars creditors from enforcing their claims after discharge, the 407 Act is permissive: it does not require ETR to enforce its claims. ETR, said the Court, could comply with both statutes by declining to pursue its remedy under section 22 of the 407 Act.
At the Supreme Court, ETR submitted that the Court of Appeal erred in its approach to and analysis of the paramountcy doctrine, and that its decision placed the Court of Appeal at odds with Supreme Court jurisprudence on paramountcy in three ways, by (a) evaluating the relative merit of the federal and provincial schemes; (b) identifying a purpose for the BIA that was both too broad and too vague; and (c) holding that the BIA required vehicle permits be granted to discharged bankrupts even though it would be ultra vires for the Federal Parliament to enact a law to such effect. The Supreme Court disagreed with ETR’s assertions. It bears mentioning in particular that the SCC’s own articulation of the purpose of the BIA is by and large consonant with that identified by the Court of Appeal.
CAIRP welcomes this decision, along with the finding in Alberta v. Moloney, as providing a long-sought resolution to the uncertainty created by the interaction of licence denial regimes and the BIA. In the latter case, the SCC examined the interaction between section 102 of Alberta’s Traffic Safety Act in the context of a discharged bankrupt’s driver’s licence being suspended as a result of an unpaid amount owed due to causing a car accident while uninsured, finding section 102 inoperative to an extent similar to its finding regarding section 22(4) of the 407 Act.
The SCC’s rulings in 407 ETR and Alberta v. Moloney make clear that administrative enforcement regimes structured in the manner of the 407 Act and Alberta’s Traffic Safety Act conflict with the BIA, and that federal paramountcy applies to the extent that such regimes make compliance with the BIA impossible and frustrate its purpose.
 407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy), 2015 SCC 52 [407 ETR].
 Alberta (Attorney General) v. Moloney, 2015 SCC 51 [Alberta v. Moloney].
 407 ETR at para 28.
 See Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2013 ONCA 769 at para 99.

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On November 18, 2010, the California issued its opinion in Pineda v. Bank of Am., N.A., __ Cal. 4th __ (2010), on the issues of whether (1) a Labor Code 203 penalty action brought without alleging an underlying wage claim is governed by the one year statute of limitations of CCP 340(a), rather than the limitations period under Labor Code 203(b), which references “an action for the wages from which the penalties arise”, and (2) whether Section 203 penalties, which the statute itself identifies as a continuation of “wages”, may be recovered as restitution under the UCL. The Court resolved both issues in the negative.
With regard to the first issue, the Court reasoned that an interpretation of section 203(b) which would condition the application of the 3 year statute for wages on the concurrent filing of an underlying wage claim was not reasonable construction of the language of Section 203(b), and would “lead to unwieldy and inconsistent results”, inlcuding (1) rendering it impossible to know what statute of limitation governed at the time a Section 203 claim accrued, and (2) permiting the anomalous situation of an employer escaping Section 203 liability altogether by waiting a year to pay unpaid wages. Slip Opinion, at 5-10.
Finally, as we have acknowledged on multiple occasions, "[t]he public policy in favor of full and prompt payment of an employee's earned wages is fundamental and well established" and the failure to timely pay wages injures not only the employee, but the public at large as well. (Smith, supra, 39 Cal.4th at p. 82.) We have also recognized that sections 201, 202, and 203 play an important role in vindicating this public policy. (Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 360.) To that end, the Legislature adopted the penalty provision as a disincentive for employers to pay final wages late. (See BLS, 20th Biennial Rep.: 1921-1922, supra, p. 36.) It goes without saying that a longer statute of limitations for section 203 penalties provides additional incentive to encourage employers to pay final wages in a prompt manner, thus furthering the public policy.
Based on these considerations, the Court concluded “there is but one reasonable construction: section 203(b) contains a single, three-year limitations period governing all actions for section 203 penalties irrespective of whether an employee's claim for penalties is accompanied by a claim for unpaid final wages.” See id., at 10, 13.
[P]ermitting recovery of section 203 penalties via the UCL would not "restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest." (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1149.) Section 203 is not designed to compensate employees for work performed. Instead, it is intended to encourage employers to pay final wages on time, and to punish employers who fail to do so. In other words, it is the employers' action (or inaction) that gives rise to section 203 penalties. The vested interest in unpaid wages, on the other hand, arises out of the employees' action, i.e., their labor. Until awarded by a relevant body, employees have no comparable vested interest in section 203 penalties. We thus hold section 203 penalties cannot be recovered as restitution under the UCL.
On November 17, 2010, the California Supreme Court granted review of the Third District’s decision in Kirby v. Immoos Fire Protection, 186 Cal. App. 4th 1361 (2010). The Kirby decision upheld a fee award in favor of an employer who successfully defended a rest period claim, concluding that meal and rest period claims were governed by Labor Code 218.5’s two-way fee shifting provisions, rather than the one way fee shifting of Section 1194. This holding poses a significant issue, as two way fee shifting would severely chill private enforcement of an employee's statutory right to recover meal and rest period premium wages.
The thrust of the argument in opposition is that Section 226.7 premium wages should be governed by Section 1194, not only because Section 226.7 proscribes a statutorily mandated wage, but also because the California Supreme Court concluded in Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) that meal and rest break premium pay is itself a form of overtime compensation.
Does Labor Code section 218.5 govern attorney's fees awarded on a cause of action alleging violation of the statutorily mandated wage payment for missed meal and rest periods (Lab. Code, 226.7), or is an attorney's fee award governed by Labor Code section 1194?
The plaintiff’s Petition was supported numerous Amici, including one drafted by myself on behalf of the CAOC. Congratulations to everyone involved on a great effort securing review of such an important issue.
The trial court concluded that the plaintiff’s PAGA claim was non-viable, asserting that “suitable seating” was not required under the language of the Wage Order, and that PAGA penalties were not recoverable insofar as subpart 20 of the Wage Order provided penalties, which were restricted to instances where the employee was underpaid. Slip Opinion, at 4. The Court of Appeal reversed.
Second, the Court rejected the employer’s argument that the penalties provision of subpart 20 of the Wage Order governed. See id, at 8-10. The Court reasoned that subpart 20 – which was a generalized penalty provision – did not provide an “exclusive penalty” for violation of the suitable seating under subpart 14. Id., at 9-10. As a result, PAGA’s default penalty provision under Labor Code 2699(f) applied, permitting for the recovery of a penalty amount of $100 for initial violations, and subsequent penalties in the amount of $200 per pay period.
On Tuesday, November 9, 2010, the U.S. Supreme Court heard oral argument AT&T Mobility LLC v. Concepcion, which considers whether the invalidation of class action waivers on state-law unconscionability grounds (i.e. the Discover Bank rule) is preempted under the Federal Arbitration Act. The case involves the 9th Circuit’s decision in Laster v. AT&T Mobility LLC, 584 F.3d 849 (9th Cir. Cal. 2009), which upheld an order denying a motion to compel “individual” arbitration based on the Discover Bank rule. This one is potentialy a game-changer. A transcript of the oral argument may be obtained on the official Supreme Court website here. Although one would think that the present composition of the Court would tend to favor AT&T, I have read through it, and admittedly, the Court seems to be leaning against preemption.
Ninth Circuit Reverses Order Denying FACTA Class Certification Grounded on Concerns Penalty Liability Was Too Large: Bateman v. American Cinema, Inc.
The district court refused to certify the class because it concluded that the proposed class failed to meet Rule 23(b)(3)’s superiority requirement. See Bateman, 252 F.R.D. at 650-51. At the heart of its ruling, the district court determined that class treatment would render the magnitude of the defendant’s potential liability “enormous and completely out of proportion to any harm suffered by Plaintiff.” Id. at 651. In its first order denying class certification without prejudice, the court also considered significant AMC’s good faith efforts to bring its machines into compliance with FACTA shortly after the lawsuit was filed. We conclude that none of these three grounds —the disproportionality between the potential liability and the actual harm suffered, the enormity of the potential damages, or AMC’s good faith—justified the denial of class certification and hold that the district court abused its discretion in relying on them.
As reasoned by the Court, Rule 23(b)(3) does not permit consideration of a comparison of actual harm relative to the aggregate amount of statutory liability when deciding whether to certify FACTA class case. Slip Opinion, at 16366-81.
The Court further reasoned that while a court’s decision to certify a class may put pressure on a defendant to settle “even unmerited claims”, this fact standing alone cannot provide a basis to deny certification. See id., at 16382-83 (“If the size of a defendant’s potential liability alone was a sufficient reason to deny class certification, however, the very purpose of Rule 23(b)(3) – 'to allow integration of numerous small individual claims into a single powerful unit' – would be substantially undermined.”). The issue of “whether the potential for enormous liability can justify a denial of class certification depends on congressional intent” [See id., at 16383], which in light of the record surrounding enactment of FACTA’s statutory penalty provisions, did not support denial of certification. See id., at 16383-84 (“To limit class availability merely on the basis of ‘enormous’ potential liability that Congress explicitly provided for would subvert congressional intent.”).
Finally, the Court reasoned that the district court’s consideration of the defendant’s post-complaint good faith compliance was inconsistent with congressional intent in enacting FACTA, as “Congress did not include any safe harbor or otherwise limit damages for good faith compliance with the statute after an alleged violation.” See id., at 16385. Rather, certification was required to further the purpose of deterrence underpinning FACTA’s statutory penalty scheme. See id.
On September 21, 2010, magistrate judges in two separate actions issued rulings concluding that the “opt-out” notice procedure approved in Pioneer Electronics, Inc. v. Superior Court, 40 Cal. 4th 360 (2007) was unnecessary for wage and hour class actions brought in Federal court. Both orders collectively provide a solid basis for dispensing with an employer’s resistance to producing the contact information of the putative class, precertification.
Moreover, the Court is not persuaded that an opt-out system is necessary, both for pragmatic and legal reasons. As to the first, such a procedure would be extremely time-consuming, given the short pre-certification discovery period. Further, in Pioneer Electronics, supra, the California Supreme Court supported the proposition that an opt-in style of notice would not be required, but did not impose an opt-out style of notice. See also Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 58748, 2008 WL 3287035 (N.D. Cal. 2008). Although Plaintiffs initially offered, as a compromise, to utilize a third party and an opt-out system, that is no longer feasible, given the looming deadline for the class certification motion.
See Alvarez, 2010 U.S. Dist. LEXIS 99281, at 5-6.
Further, under Federal Rule of Civil Procedure 26(a)(1)(A) "[a] party must, without awaiting a discovery request, provide to the other parties... [t]he name and, if known, the address and telephone number of each individual likely to have discoverable in the information...." Moreover, subsection (b) of that Rule states a party "may obtain discovery regarding any non-privileged matter that is relevant to any parties claim or defense-including... The identity and location of persons who know any discoverable matter." Under the Federal Rules, the information plaintiff seeks is clearly discoverable. Moreover, there is no requirement for any notice provision that would limit this very basic discovery to which plaintiff is clearly entitled under our rules.
See Stone, 2010 U.S. Dist. LEXIS 99754, at 6-7.
On September 17, 2010, the First District (Division Four) changed the status of its opinion in California Correctional Peace Officers’ Association v. State of California from unpublished to published. The opinion affirmed the trial court’s determination that Labor Code Sections 226.7 and 512 relating to meal and rest periods do not apply to public employees. As reasoned by the Court, “[a] traditional rule of statutory construction is that, absent express words to the contrary, governmental agencies are not included within the general words of a statute.” See Slip Opinion, at 5. From this starting point, the Court rejected arguments that the Legislature’s failure to expressly exclude public entities in Section 226.7 and 512, while expressly excluding public entities in other Labor Code provisions was a sufficient basis to conclude that the Legislature intended such provisions to extend to public employees. See id., at 5-6.
On August 31, 2010, Eastern District Court Judge, Lawrence K. Karlton, certified off-the-clock and meal period claims of enrollment counselors in Adoma v. Univ. of Phoenix, 2010 U.S. Dist. LEXIS 96388 (E.D. Cal. Aug. 31, 2010). Plaintiffs’ off-the-clock and meal period claims derived from an alleged requirement that enrollment counselors be available at any time to take calls forwarded by defendant’s nationwide automated call-routing system, which plaintiffs claimed resulted in employees not being paid for time spent working through meal periods. The Court’s analysis in certifying such claims is noteworthy for the use of statistical sampling to overcome issues with predominance.
Plaintiffs argue that rather than relying on login/logout times, they can look at records of calls made in combination with the aux codes to determine what work an employee was actually doing and when.  Defendants respond that the aux codes are also unreliable. Some evidence, including depositions of the named plaintiffs, indicates that employees often fail to enter the appropriate aux code or change in aux code when the employee leaves for or returns from lunch, especially when the employee is in a meeting or engaged in another "aux" activity immediately prior to or after lunch. Although defendants further argue that employees inappropriately fail to distinguish between other aux codes, the "meal break" code is the only potentially non-compensable code, so ambiguity among the others is not relevant to the reconstruction of hours worked. Plaintiffs acknowledge that employees sometimes improperly record meal periods. Plaintiffs nonetheless argue that the question is whether an employee, or employees generally, "regularly forgot to log out for lunch." The court cannot agree. Plaintiffs' claim is for failure to pay for hours actually worked, and this is a fact specific inquiry. This is not to say that individual issues predominate: trends may establish, by a preponderance of evidence, that most days in which meal periods were not recorded, the employee in fact took no meal period. The issue, however, is whether the trend is evidence of individual days, not vice versa.
See Adoma, 2010 U.S. Dist. LEXIS 96388, at 15-16.
All potential class members used both the Avaya and MyHR systems. While defendants argue that the Avaya system provides an inadequate indicator of the number of hours employees actually worked, the types of arguments are common to all class members. Hilao appears to permit a representative inquiry to determine the magnitude of these effects, and at this stage, the court cannot distinguish Hilao. The remaining questions are also common. Notably, the question of whether the Avaya system gave defendants at least constructive knowledge of the employee overtime is a common question. Thus, it appears that common questions predominate. Although defendants argue that the named plaintiffs are not typical, the asserted atypicalities pertain to facts irrelevant to the above theories of liability and proof. Accordingly, plaintiffs have shown commonality, typicality, and predominance of common issues as to their state law off-the-clock claim.
See Adoma, 2010 U.S. Dist. LEXIS 96388, at 22-23.
Of course, the legal question regarding the scope of the employer's obligation is itself a common question of law. As to common questions of fact, plaintiffs contend that they will use the Avaya phone records system to demonstrate how often employees skipped meal periods. For the reasons stated above it appears that this predicate factual question is susceptible to common proof. Accordingly, common issues predominate.
See Adoma, 2010 U.S. Dist. LEXIS 96388, at 26-27.
On September 13, 2010, Southern District Judge Irma E. Gonzalez, issued an order granting (in part) plaintiffs’ motion for certification of multiple wage claims in Lopez v. G.A.T. Airline Ground Support, 2010 U.S. Dist. LEXIS 95636, 22-23 (S.D. Cal. Sept. 13, 2010). As discussed previously in a post here, the Court granted a plaintiff-side summary judgment as to two of the claims at issue (i.e. the vacation claim and the wage statement clam).
Defendants argue that Plaintiffs' proposed "Vacation/Uniform/Paycheck/Wages/Breach of Contract" Class requires individual inquiries of fact and the application of five different areas of law, such that the proposed class fails the predominance inquiry under Rule 23(b)(3). As explained below, however, each of the claims asserted by this proposed class are based upon company policies which were consistently applied to all of GAT's employees at the four designated airports. Although individual inquiries would be necessary to determine whether the class members were damaged by the policies, the Court believes most of these individual inquiries are manageable in light of the size of the class.
See Lopez v. G.A.T. Airline Ground Support, 2010 U.S. Dist. LEXIS 95636, at 22-23.
Vacation Pay Claim: “Plaintiffs challenge GAT's policy of denying accrued and vested vacation benefits to those employees who leave the company before their one year anniversary. The Court has already found that the policy required employees to forfeit vested vacation pay in violation of Labor Code § 227.3. … Where, as here, the claim asserted by a proposed class is based upon a consistent employer practice, class certification is usually appropriate.” See id., at 24.
Uniforms Claim: “Although Plaintiffs' uniform deposit/refund claim presents more questions of individual fact than their unpaid vacation benefits claim, it also stems from a consistently applied company-wide policy.” See id., at 23-24.
Paycheck Claim: “Plaintiffs' paycheck claim also stems from a consistently applied company-wide policy of issuing payroll checks to California employees from an out-of-state bank, without indicating on the face of the check where it could be cashed on demand and without discount. The Court has already determined this practice violated Labor Code § 212, regardless of whether any individual plaintiff suffered actual injury. If a putative class member incurred a fee or delay in cashing the check, that plaintiff may be entitled to damages. However, those individual issues do not predominate over the common issue of law regarding whether GAT's consistently applied policy was unlawful.” See id., at 24-25.
Section 203/Late Wage Claim: “Plaintiffs' claim that GAT failed to pay its employees all wages due within the required time upon separation of employment arises out of the same nucleus of facts as its Vacation claim and Uniform claim. Plaintiffs allege GAT's practice of not paying vested vacation time to those employees who separated from employment before their one-year anniversary, and GAT's practice of mailing deposit checks to separated employees, both result in wages not being paid when due. Both of these claims are predicated on common legal issues.” See id., at 25.
Unpaid Compelled “Shuttle” Time: “As to each of the three airports subject to this claim, Plaintiffs allege GAT has designated employee parking lots far from the work area and requires employees to park in those lots and take a shuttle bus to the site.… Based upon GAT's alleged policy of requiring employees to use these shuttles, there is a common question of law as to whether GAT is required to compensate its employees for that travel time. Although Defendants argue there are individual inquiries regarding whether employees could have utilized other methods of transportation or were required to park in the employee lots and travel to the site on the employee shuttle, these inquiries go directly to the common legal question of whether GAT should have compensated employees for their travel time.” See id., at 26-27.
Section 184.02 states in pertinent part: "Service Charges shall not be retained by the Hotel Employer but shall be paid in the entirety by the Hotel Employer to the Hotel Worker(s) performing services for the customers from whom the Service Charges are collected." (LAMC, § 184.02, subd. (A).) Service charges may not be paid to "supervisory or managerial employees," and must be paid to "Hotel Worker(s) equitably and according to the services that are or appear to be related to the description of the amounts given by the hotel to the customers." n6 (LAMC, § 184.02, subd. (A).) Service charges collected for banquets or catered meetings "shall be paid equally to the Hotel Workers who actually work the banquet or catered meeting"; service charges collected for room service "shall be paid to the Hotel Workers who actually deliver the food and beverage associated with the charge"; and service charges collected for porterage services "shall be paid to the Hotel Workers who actually carry the baggage associated with the charge." (LAMC, § 184.02, subd. (A)(1)-(3).) Gratuities and tips left by customers for a hotel worker are excluded.
In concluding that the Ordinance was not preempted, the Court reasoned that “a service charge by definition is not a gratuity” under Labor Code Section 350, and rejected outright the hotel employer’s counter argument that this finding would vest them with a property right to such funds under Section 351. See id., at 10-11 (“We do not read section 351 or any other provision in the Labor Code governing gratuities to address employers' property rights.”).


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95,034-- Schafer v. All Things Exterior, Inc. -- Per Curiam -- Affirmed -- Mitchell.
95,076 -- State v. Wise -- Per Curiam -- Affirmed in part, reversed in part, and remanded with directions -- Sedgwick.
95,469 -- State v. Garnes -- Per Curiam -- Affirmed -- Sedgwick.
95,882 -- Palmer v. State -- Per Curiam -- Affirmed -- Johnson.
96,094 -- Jackson v. State -- Per Curiam -- Affirmed -- Johnson.
96,195 -- State v. Heistand -- Per Curiam -- Affirmed in part, reversed in part, and remanded with directions - - Bourbon.
96,462 -- Dameron and Glover v. Kelsay -- Per Curiam -- Reversed and remanded with directions -- Sedgwick.
96,551/97,265 -- Brown v. State -- Per Curiam -- Affirmed -- Riley.
96,592 -- State v. Blakely -- Per Curiam -- Affirmed in part, vacated in part, and remanded -- Cowley.
96,605 -- State v. Golston -- Per Curiam -- Affirmed -- Sedgwick.
97,186 -- State v. Jones -- Per Curiam -- Affirmed -- Geary.
97,314 -- In the Matter of J.A.Y. -- Per Curiam -- Reversed and remanded with directions -- Saline.
97,423 -- McCabe v. Schoenwald, et al. -- Per Curiam -- Affirmed -- Sedgwick.
97,437 -- Tienda v. Tienda and Proctor. -- Per Curiam -- Affirmed -- Johnson.
97,692 -- Strong v. Roberts -- Per Curiam -- Affirmed -- Butler.
97,840 -- Tienda v. Tienda and Proctor -- Per Curiam -- Affirmed -- Johnson.
98,090 -- In the Matter of the Adoption of Baby L. -- Per Curiam -- Affirmed -- Riley.
Updated: September 07, 2007; revised: November 19, 2007.

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Nursing clinics of North America, v. 41, no. 2.
The series Nursing clinics of North America, v. 41, no. 2. represents a set of related resources, especially of a specified kind, found in Waubonsee Community College.
The Resource Nursing clinics of North America, v. 41, no. 2.
1 Items in the Series Nursing clinics of North America, v. 41, no. 2.
Context of Nursing clinics of North America, v. 41, no. 2.
Data Citation of the Series Nursing clinics of North America, v. 41, no. 2.

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FISH AND WILDLIFE SERVICE, ET AL.
Whether the court of appeals correctly held that the United States Fish and Wildlife Service's environmental assessment and finding of no significant environmental impact, pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., with respect to the Service's designation of boundaries for a new National Wildlife Refuge, were not arbitrary and capricious.
The opinion of the court of appeals (Pet. App. 1a-20a) is reported at 562 F.3d 712. The opinion of the district court (Pet. App. 21a-59a) is unreported.
The judgment of the court of appeals was entered on March 12, 2009. The petitions for a writ of certiorari were filed on June 10, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., requires federal agen cies to examine the environmental effects of proposed federal actions and to inform the public about those ef fects. 42 U.S.C. 4332(2)(C). Pursuant to NEPA and its implementing regulations, the United States Fish and Wildlife Service (FWS) prepared an environmental as sessment of the environmental impact of establishing the Neches Wildlife Refuge along the Upper Neches River in Texas, and concluded that no significant envi ronmental impact would arise, obviating the need to un dertake a more detailed environmental impact state ment. Petitioners challenged that decision as arbitrary and capricious. The district court granted FWS's mo tion for summary judgment and its motion to dismiss petitioners' NEPA claims. Pet. App. 21a-59a. The court of appeals affirmed. Id. at 1a-20a.
1. a. The Secretary of the Interior, through FWS, is charged with administering the National Wildlife Ref uge System (System). 16 U.S.C. 668dd(a)(1). The Sys tem's purpose is to establish and "administer a national network of lands and waters for the conservation, man agement, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." 16 U.S.C. 668dd(a)(2). In administering the System, the Secretary is required to, among other things, "plan and direct the continued growth of the System in a manner that is best designed to accomplish [its] mission," and "to contribute to the conservation of the ecosystems of the United States." 16 U.S.C. 668dd(a)(4)(C).
b. Under NEPA, whenever an agency proposes a "major Federal action significantly affecting the qual ity of the human environment," it must prepare a de tailed statement on the environmental impact of the pro posed action, termed an environmental impact state ment (EIS). 42 U.S.C. 4332(2)(C). The Council on Envi ronmental Quality (CEQ) has promulgated regulations to guide federal agencies in determining what actions are subject to that statutory requirement. See 40 C.F.R. 1500.3; Andrus v. Sierra Club, 442 U.S. 347, 357 (1979). The CEQ regulations allow an agency to comply with NEPA by preparing a more limited document, known as an environmental assessment (EA), in order to determine whether a full EIS is necessary. See 40 C.F.R. 1501.3, 1501.4. An EA is a "concise public docu ment" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS]." 40 C.F.R. 1508.9(a) and (a)(1). If the agency determines on the basis of the EA that an EIS is not required, then it must issue a "finding of no significant impact," which is a document "briefly presenting" the reasons that the agency action will not have a significant impact on the human environment. 40 C.F.R. 1501.4(e), 1508.13.
NEPA does not mandate particular substantive re sults, but instead simply prescribes the necessary pro cess to ensure that agencies are fully informed with re spect to the environmental consequences of their pro posed projects. See Robertson v. Methow Valley Citi zens Council, 490 U.S. 332, 350-351 (1989); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). "[I]nherent" in NEPA's procedural require ments is a "rule of reason" that relieves agencies of the obligation to consider every conceivable environmental effect, if doing so would be of little value to the decision- making process. Department of Transp. v. Public Citi zen, 541 U.S. 752, 767-768 (2004); Marsh v. Oregon Nat ural Res. Council, 490 U.S. 360, 373 (1989). Thus, an agency must consider an environmental effect of a pro posed major federal action only if there is "a reasonably close causal relationship between the environmental effect and the alleged cause." Public Citizen, 541 U.S. at 767 (internal quotation marks omitted). This Court has "analogized this requirement to the familiar doctrine of proximate cause from tort law." Ibid.
2. In 1961, the State of Texas identified the Upper Neches River area as a potential site on which to build a water-supply reservoir, known as the Fastrill Reser voir. Pet. App. 2a. For more than forty years, petition ers took no substantial steps towards planning, analyz ing or building the reservoir, but periodically listed the site in state and local water plans as one of a number of potentially suitable reservoir sites. Id. at 2a-3a. When mentioned, the reservoir was described as potentially being constructed in 2050 and tapped in 2060. Id. at 2a, 37a.
In 1985, FWS identified the Upper Neches River area as an ecologically important bottomland hardwood habitat, and labeled the site as a high priority for pro tection. Pet. App. 2a-3a. The bottomland ecosystem supports a diverse array of plants and animals, and con tains important wintering habitats for various waterfowl species. Gov't R.E. 3518-3519. FWS prepared a prelim inary refuge proposal in 1988 and subsequently pre pared, but did not publish, a draft EA. Pet. App. 3a. FWS did not proceed with the proposal at that time largely because of a lack of funding. Ibid.
In 2003, FWS reactivated the project because of large-scale timber divestment occurring along the Neches River. Gov't C.A. Br. 10. In June 2004, FWS officially introduced to the public the study for the pro posed refuge. Ibid. FWS held public workshops in July 2004 and made a presentation about the project to the East Texas Regional Water Planning Group and other interested members of the public in October 2004. Pet. App. 3a, 57a.
With information generated from the study phase, FWS prepared an EA addressing the potential impacts of the proposed project, and also prepared land protec tion and concept management plans. The EA evaluated three alternatives, including: (1) a "no action" alterna tive; (2) the recommended 25,281-acre configuration; and (3) a narrower 15,294-acre configuration. Pet. App. 3a. The EA acknowledged the reservoir proposal, and noted that only the no-action alternative would preserve the possibility that the reservoir could be built, because the reservoir could not be constructed on land desig nated as a wildlife refuge absent congressional action. Id. at 3a, 42a; Gov't R.E. 3539, 3543. But because no feasibility study had been conducted and the precise location of the reservoir was undecided, the EA con cluded that the reservoir project was speculative, and that it was impossible to meaningfully assess whether and how the refuge and reservoir plans might interface.2 Pet. App. 42a; Gov't R.E. 3534.
In May 2005, FWS distributed the EA to public offi cials and interested groups and held two public hear ings. Pet. App. 3a, 57a. Petitioners were invited to par ticipate in the comment process and meetings, but they did not submit any proposals for alternative refuge sites or for developing both the refuge and the reservoir. Id. at 55a, 57a. FWS received more than 1,600 comments on the proposal, the majority of which favored establish ment of the Refuge. Id. at 3a, 57a; Gov't C.A. Br. 12. FWS responded to comments from governmental agen cies, including petitioners, regarding the future pros pects for a reservoir within the boundaries of the pro posed Refuge, Pet. App. 57a, and pointed out that if the Refuge was established, state officials could request that Congress authorize the Secretary to take the necessary steps to allow the construction of the reservoir. Gov't C.A. Br. 12. On July 28, 2005, FWS determined that an EIS was unnecessary and issued a Finding of No Signif icant Impact (FONSI). Pet. App. 3a.
In August 2005, shortly after FWS issued the FONSI, the Texas legislature designated the reservoir a "critical resource." Pet. App. 3a-4a. Throughout early 2006, FWS repeatedly met with representatives of the City of Dallas (City) and other entities to determine whether an alternative refuge site of equal or greater ecological value could be identified. Id. at 4a.
FWS set a June 1, 2006, deadline for its decision whether to designate the area as a wildlife refuge. Pet. App. 54a. At that point, the City's feasibility study had not yet been completed, and no concrete steps toward development of the reservoir, such as applying for per mits, had been taken. Id. at 4a. Moreover, the Director of the Texas Parks and Wildlife Department had in formed FWS that no viable alternative refuge site had been identified. Gov't C.A. Br. 14. FWS issued its final decision approving the 25,281-acre Refuge boundary on June 11, 2006, and shortly thereafter accepted a conser vation easement from a landowner within the acquisition boundary. Id. at 4a; Gov't C.A. Br. 14.
3. In January 2007, petitioners filed suit against respondents in the United States District Court for the Northern District of Texas, alleging, inter alia, that FWS's EA was insufficient and its decision not to under take an EIS was arbitrary and capricious, in violation of NEPA. Pet. App. 4a. The district court granted partial summary judgment to FWS, rejecting petitioners' asser tions that FWS had failed adequately to consider the impact of its refuge designation on the prospects for a reservoir, had failed to consider alternative proposals, and had relied on outdated data. Id. at 21a-59a.
4. The court of appeals affirmed. Pet. App. 1a-20a. Reviewing the sufficiency of FWS's EA under the arbitrary-and-capricious standard, see Public Citizen, 541 U.S. at 763, the court first found that FWS had not acted arbitrarily and capriciously in declining to analyze the potential effects of the refuge designation on future water supplies, Pet. App. 5a-6a, 10a-11a. In view of the uncertainty about whether the reservoir would ever have been constructed and its role in supplying the re gion's future water needs, the court held that the refuge designation could not be considered the proximate cause of any effect on water supplies. Id. at 6a-9a. The court also concluded that the EA considered an adequate range of alternatives, and that in any event, petitioners failed to proffer viable alternative proposals to FWS during the comment period and the subsequent discus sions. Id. at 9a-10a. The court also rejected petitioners' contention that FWS arbitrarily relied on outdated data that were insufficient to permit a reasoned decision, id. at 11a-13a, and upheld FWS's choice of a 20-year time horizon as reasonable, id. at 13a-14a.
Finally, the court upheld FWS's decision not to un dertake an EIS as not arbitrary and capricious in view of FWS's "reasoned decision," in its EA, "that there were no significant environmental effects." Pet. App. 17a. The court also rejected the Texas Water Develop ment Board's (TWDB) argument that the refuge desig nation itself would have significant physical effects on the environment, noting that the designation itself would not change the physical attributes or the maintenance of the land. Id. at 18a-19a (citing Sabine River Auth. v. United States Dep't of the Interior, 951 F.2d 669 (5th Cir.), cert. denied, 506 U.S. 823 (1992)).
Petitioners renew their contention that FWS acted arbitrarily and capriciously in crafting its EA, and in concluding that the refuge designation would have no significant environmental impact. The court of appeals correctly rejected petitioners' arguments, and its fact- bound decision does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted.
1. Petitioners first contend (Pet. 11-29; 08-1524 Pet. 23-31) that FWS's EA was insufficient because it failed to consider the effects on the state and city water sup plies that might result from not building the reservoir, as well as effects on as-yet undetermined alternative sites where petitioners might in the future decide to build a reservoir.
a. The court of appeals correctly held that FWS was not required to analyze the refuge designation's poten tial effects on future water supplies and urban planning because any such effects would not be proximately caused by FWS's action. Pet. App. 9a-11a. Petitioners acknowledge (Pet. 12; 08-1524 Pet. 24) that FWS was required only to consider proximately related, reason ably foreseeable impacts of its action, see Department of Transp. v. Public Citizen, 541 U.S. 752, 767 (2004), and they do not contend that the court of appeals did not apply this standard, see Pet. App. 9a. Rather, petition ers challenge the court of appeals' fact-bound conclusion that FWS permissibly determined that the reservoir- related effects were not reasonably foreseeable.
As FWS and the court of appeals found, the connec tion between FWS's establishment of the refuge bound ary and the alleged effects on the City's water supply is far too attenuated to fall within NEPA's sphere. See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772-774 (1983). Petitioners "never committed to constructing the reservoir and may never have done so." Pet. App. 11a. Petitioners had not taken any concrete steps "such as seeking permits, acquiring property, or commencing any of the hydrological, fiscal, or environmental studies necessary to a major public works project." Ibid. As a result, petitioners might have decided not to construct the reservoir for any num ber of reasons that would be unrelated to FWS's ac tion-for instance, if eventual studies showed that the reservoir was impracticable. Reflecting the tentative nature of petitioners' plans, petitioners "never identified the precise role the reservoir-even if constructed and tapped in 2060-will play in supplying the region's" wa ter. Ibid. NEPA does not require agencies to attempt to analyze effects that are susceptible to innumerable intervening occurrences that could break the causal chain leading from the federal action at issue. See Met ropolitan Edison, 460 U.S. at 772-774; Public Citizen, 541 U.S. at 767 (courts must draw a "manageable line" respecting causation).
TWDB also contends (08-1524 Pet. 24-27) that FWS was required to analyze a sweeping range of potential effects that allegedly might flow from not constructing the reservoir, including the environmental effects of constructing a reservoir on a different, as-yet-undeter mined site. But the court of appeals correctly concluded that an analysis of the impact of establishing the refuge boundary on future decisions by others about what wa ter sources to develop in the future, and the effects of such unknown decisions on future water supply prob lems in the region, could not be based on anything but conjecture. Pet. App. 11a. NEPA does not require agencies to engage in projections that would be too spec ulative to aid the decision-making process. See Public Citizen, 541 U.S. at 767 ("inherent in NEPA and its im plementing regulations is a 'rule of reason'"); Metropoli tan Edison, 460 U.S. at 776.
b. The City contends (Pet. 26-29) that the court of appeals' conclusion that the designation of the refuge would not proximately cause effects on future water sup plies conflicts with this Court's decisions in Public Citi zen and Metropolitan Edison. In Public Citizen, the Court upheld the agency's decision not to address in its EA the environmental effects of allowing Mexican trucks to drive into the United States, because the agency had "no ability categorically to prevent the cross-border operations of Mexican motor carriers." 541 U.S. at 768. Contrary to the City's contentions (Pet. 27), that conclusion does not mean, nor did this Court sug gest, that an agency must invariably consider all effects that it "has authority to create or prevent," even if those effects are not proximately related to the action at issue. See Oregon Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1134 n.20 (9th Cir. 2007) (agency should con sider proximate effects it has authority to prevent). Rather, in emphasizing that NEPA is intended to im pose a manageable, not unlimited, obligation to consider effects proximately caused by the proposed action, Pub lic Citizen supports the court of appeals' decision. 541 U.S. at 767-768. Metropolitan Edison, 460 U.S. at 774, is to the same effect.
c. The City also argues (Pet. 11-12, 16-17) that the court's proximate-cause holding conflicts with decisions of other courts of appeals. The cases on which petition ers rely, however, simply applied the proximate-cause standard to distinguishable factual scenarios in which the relevant agency had failed to assess the effects of currently existing circumstances or virtually inevitable future actions, often in the context of the more detailed analysis necessary in an EIS. See Oregon Natural Res. Council Fund v. Goodman, 505 F.3d 884, 892-893 (9th Cir. 2007) (EIS for the expansion of a ski area must con sider cumulative impacts in light of two other already- scheduled projects in the area); Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1121-1123 (9th Cir. 2005) (agency analysis was artificially limited to a portion of the planned development project); Kern v. United States Bureau of Land Mgmt., 284 F.3d 1062, 1072-1073, 1075 (9th Cir. 2002) (addressing agency's failure to consider effect of timber sales on spread of fungus in surrounding areas); Oregon Natural Res. Council v. Marsh, 832 F.2d 1489, 1498 (9th Cir. 1987), rev'd on other grounds, 490 U.S. 360 (1989) (EIS did not adequately consider pro posed dam's impact in conjunction with existing dams in the area); Sierra Club v. Marsh, 769 F.2d 868, 872, 878 (1st Cir. 1985) (NEPA analysis must consider effects of building a cargo port and causeway on an island in light of second planned phase of industrial development, which consisted of detailed plans and which was virtu ally certain to occur); Scientists' Inst. for Pub. Info., Inc. v. AEC, 481 F.2d 1079, 1085-1093 (D.C. Cir. 1973) (rejecting argument that NEPA did not apply at all to a technology development program). In sum, as the court of appeals observed, petitioners have pointed to no case requiring an agency to analyze the effects of its action on a proposed but highly contingent future project.3 Pet. App. 10a-11a.
d. The City also contends (Pet. 23-25) that the court of appeals' decision leaves "federal agencies * * * free to ignore" state and local water-management plans, rais ing federalism concerns. FWS did not "ignore" petition ers' water-supply plans, however; it consulted exten sively with state and local authorities throughout the decision-making process, even long after the FONSI was complete, and reasonably determined that the possi bility of a reservoir was too speculative to be proxi mately affected by the refuge designation. NEPA does not require any more than that. To the extent petition ers contend that FWS's substantive decision to desig nate the refuge notwithstanding petitioners' objections impinged on state sovereignty, NEPA-a procedural statute-does not provide a vehicle for such a challenge. And although petitioners asserted Tenth Amendment claims below, they have not renewed those claims, which the court of appeals rejected as meritless and waived, before this Court.4 Pet. i; 08-1524 Pet. i.
2. The City next contends (Pet. 18-21) that FWS arbitrarily and capriciously failed to consider an ade quate range of alternatives, including alternatives that would have permitted both the reservoir and the refuge to be built. But an EA need only consider a reasonable range of alternatives that would serve the purpose of the proposed project. See, e.g., Highway J Citizens Group v. Mineta, 349 F.3d 938, 960 (7th Cir. 2003), cert. denied, 541 U.S. 974 (2004). Here, the court of appeals correctly upheld FWS's conclusion that it could not evaluate a dual-use proposal without knowing any specifics as to where a reservoir might be built; how large it would be; and whether it would be built at all. Pet. App. 9a.
None of the decisions on which petitioners rely (Pet. 20-23) conflicts with the court of appeals' holding, as all evaluated the relevant agency's consideration of alterna tives in light of the specific facts of each case, often in the context of reviewing the more extensive analysis required in an EIS. See, e.g., Center for Biological Di versity v. National Highway Traffic Safety Admin., 538 F.3d 1172, 1218 (9th Cir. 2008) (agency refused to con sider reasonable, less environmentally damaging alter natives submitted by parties); Davis v. Mineta, 302 F.3d 1104, 1120-1122 (10th Cir. 2002) (agency refused to con sider in EA proposed alternatives that were feasible and less damaging to the environment); Muckleshoot Indian Tribe v. USFS, 177 F.3d 800, 813 (9th Cir. 1999) (EIS involving transfer of old-growth forest to private compa nies insufficient where agency failed to consider alterna tives that would have been more protective of the forest and therefore more consistent with agency's stated pol icy goals); Simmons v. United States Army Corps of Eng'rs, 120 F.3d 664, 669-670 (7th Cir. 1997) (agency may not artificially limit its consideration of viable alter natives to those preferred by the beneficiary of the pro ject); Methow Valley Citizens Council v. Regional For ester, 833 F.2d 810, 815 (9th Cir. 1987) (EIS, which must consider "every" reasonable alternative, should have considered alternative locations because the proposed action was not tied to a particular location), rev'd on other grounds sub nom. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989); see also Pet. 21-22 (citing decisions and regulations applying to EIS).
3. The City next contends (Pet. 29-34) that FWS relied on "outdated" data in its EA, pointing to FWS's use of some data from its 1988 EA. Pet. 32. The only allegedly outdated data that the City identifies, how ever, related to the amount of bottomland hardwood cover; the City contends that the hardwood cover on the refuge site had diminished in the interval between 1988 and 2004, making the Upper Neches site less effective as a wildlife refuge. Ibid. But an EA need only contain "sufficient" information to enable the agency to decide whether an EIS is necessary, 40 C.F.R. 1508.9(a)(1), and FWS performed its own examination of the site in 2004, concluding that notwithstanding hardwood diminish ment, the site remained appropriate for the refuge. Pet. App. 48a. The court of appeals correctly held that that was sufficient for purposes of an EA.6 Id. at 12a-13a; see Public Citizen, 541 U.S. at 767 (noting "rule of rea son" applicable to EAs). The City's argument therefore reduces to a disagreement with FWS's ultimate decision to designate the refuge. But NEPA requires only that the agency make an informed decision; it does not re quire an agency to reach any particular substantive re sult. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978).
In arguing that the court of appeals' decision devi ates from those of other circuits, the City relies (Pet. 31- 32 & n.14) on inapposite cases concerning the "scientific integrity" requirements applicable to an EIS under 40 C.F.R. 1502.24, or procedural situations not presented here. See, e.g., New Mexico ex rel. Richardson v. Bu reau of Land Mgmt., 565 F.3d 683, 704-707 (10th Cir. 2009) (evaluating sufficiency of data in EIS); Idaho Sporting Congress Inc. v. Alexander, 222 F.3d 562, 567 (9th Cir. 2000) (disapproving use of supplemental re ports to present omitted data because such reports are not contemplated by NEPA or its regulations); Seattle Audubon Soc'y v. Espy, 998 F.2d 699, 704-705 (9th Cir. 1993) (EIS for adoption of spotted owl management plan failed to consider new scientific uncertainty regarding evidence on which the agency's strategy rested).
4. TWDB next contends (08-1524 Pet. 32-37) that the court of appeals' holding that FWS reasonably con cluded no EIS was necessary conflicts with the Tenth Circuit's decision in Catron County Board of Commis sioners v. United States Fish & Wildlife Serv., 75 F.3d 1429 (1996) (Catron County). TWDB is incorrect.
In Catron Country, FWS argued that it was not re quired to consider the environmental impact of its desig nation of a critical habitat under the Endangered Spe cies Act (ESA), 16 U.S.C. 1531 et seq., because the ESA entirely superseded NEPA's requirements. In support of that argument, FWS contended that NEPA compli ance was unnecessary because a critical-habitat designa tion could have only beneficial environmental effects. Catron County, 75 F.3d at 1437. In rejecting that posi tion, the court stated that NEPA broadly applies to all federal action, regardless of whether a proposed action is projected to have a beneficial or detrimental effect on the environment, and it also noted that the fact that the action in question was taken pursuant to the ESA did not necessarily mean that it would have no detrimental effects on other aspects of the environment. Ibid.
Nonetheless, TWDB suggests (08-1524 Pet. 35-36) that the court of appeals assumed that all boundary des ignations and conservation-related actions necessarily will not have any detrimental environmental effects, thereby diverging from Catron County. To the con trary, the court simply stated that, in addition to the lack of proximate relation to any effect on the City's wa ter supply, FWS's FONSI was supported by the fact that the designation would not effect any current physi cal change in the land or alter the way in which the land is currently used. Pet. App. 18a (citing Sabine River Auth. v. United States Dep't of the Interior, 951 F.2d 669, 680 (5th Cir.), cert. denied, 506 U.S. 823 (1992), which approved a FONSI in similar circumstances, where the boundary designation did not alter the exist ing land use in any way and any effect on future water supply was not proximately related). The court's ap proval of the FONSI was thus based on the specific characteristics of the refuge designation at issue in this case.8 Id. at 6a-18a. The court's fact-bound conclusion that FWS reasonably determined that the designation of the refuge would not have a significant impact on the environment is correct, and does not warrant further review.
1 Unless otherwise noted, all references to "Pet." and "Pet. App." are to the petition and petition appendix in No. 08-1520.
2 In March 2005, having learned of FWS's renewed consideration of the refuge site, the City had commissioned a feasibility study, but it was not yet complete. Pet. App. 3a; Gov't C.A. Br. 10, 13-14.
3 Petitioners also argue (Pet. 17-18; 08-1524 Pet. 28-31) that the 20- year time horizon selected by FWS was arbitrary and capricious. The court of appeals correctly rejected that argument. Pet. App. 13a-14a. The decisions that petitioners assert conflict with the court's conclusion simply evaluated specific time horizons in light of the action at issue. See, e.g., Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 962- 963 (9th Cir. 2003). And in any event, FWS's decision not to further ad dress the potential impact of not building the reservoir was based on its reasonable conclusion that the reservoir might not be built at all-a conclusion that did not depend on any particular time horizon.
4 FWS also did not contravene 40 C.F.R. 1506.2(b), which requires agencies to coordinate with state and local agencies. See 08-1524 Pet. 28. By its terms, that provision is directed to minimizing "duplication between NEPA and State and local requirements," not the circum stances in which an agency may decline to consider a possible impact on a state proposal.
5 As the court of appeals noted, Pet. App. 9a, even had these alter natives been consonant with the purpose of the designation, they were not presented during the comment period. See Public Citizen, 541 U.S. at 764-765 (challengers should present proposed alternatives during the comment period). Contrary to the City's suggestion (Pet. 22), requiring those challenging an EA to present proposed alternatives during the comment period does not improperly "shift the burden" of compliance with NEPA.
6 The court did not assume, as the City suggests (Pet. 33), that re liable data were not necessary because the refuge designation was conservation-related. Rather, the court distinguished the decisions on which petitioners relied as involving situations in which the agency was considering whether to undertake environmentally harmful actions, and failed to obtain adequate data on the extent of the potential effects. Pet. App. 12a. Here, the City challenges FWS's reliance on its own examin ation (as well as data) in applying its expert judgment and concluding that the refuge site was an important habitat that should be preserved.
7 For the same reasons, any conflict between Catron County and Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S. 1042 (1996), which held that the ESA's procedures superseded NEPA (see 08-1524 Pet. 34-35), is not implicated here.
8 Even if the court had made such an assumption, its holding would not conflict with that of Catron County, because that decision did not concern the circumstances in which potential environmental effects are significant enough to require an EIS under NEPA.

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