LEAGUE. TO SAVE LAKE v. TAHOE REGIONAL PLANNING

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Furthermore, even piers that do not violate public trust rights may "adversely affect the desire of pedestrians to move laterally along the beach or affect waterside nearshore lateral recreation ( e.g., kayaking, swimming, top-line fishing)." TRPA's brief at 27 (citing AR 2:743). Thus, while compliance with the above standards lessens a pier's impact on recreational access, the EIS and Amendments acknowledge that the above measures, standing alone, are insufficient to ensure that the Amendments do not interfere with recreational access. EIS 2:743, 783 ("The basis for mitigation is that pier construction impairs public recreational access along the lake."). Such additional mitigation is required regardless of whether CSLC will ensure that new piers do not offend California's public trust.

b. Measures to Mitigate Remaining Recreational Impacts

The Amendments propose to mitigate the unavoidable impacts of new piers by using fees levied on new piers to remove existing barriers to recreational access. Construction of a new private pier will carry a fee of $100,000, and expansion of a private pier will incur a fee of $20 per square foot of additional area. Code § 54.13.A. The EIS contains conflicting explanations as to the derivation of this fee. The final EIS first explains that:

The amount of the fee is based on estimation of the costs of providing equivalent replacement value for recreation and public access by removing a pier from a developed parcel and restricting development on the parcel with an easement.

AR 2:744 (emphasis added). The document later states that:

The amount of the LTPAF fee is based on a real-world estimation of the costs of providing equivalent replacement value for recreation and public access that would result from removing a pier from a developed parcel and restricting development on the parcel with an easement.

AR 2:784 (emphasis added). Both explanations cite AR 6:3645, which explains that this fee represents the physical cost of removing a pier (e.g., labor, machinery and disposal) plus the cost of purchasing a 10 linear foot easement on the subject land.

The parties sharply disagree as to how this money will be spent, and thus whether the fee is adequate. Under either party's interpretation of the program, the TRPA's finding was arbitrary and capricious.

If the LTPAF is intended to pay for the removal of existing piers, as plaintiffs argue, then the EIS fails to include a reasonable examination into whether the fee is adequate. Plaintiffs argue that there is no indication that lakefront property owners would be willing to part with a pier for the $80,000 at which TRPA values an easement. If the LTPAF is intended to actually fund removal of piers, pier owners' willingness to sell piers for this price is "an important aspect of the problem" that TRPA was required to consider. McNair, 537 F.3d at 987. TRPA has not identified any such consideration in the EIS.

TRPA argues that although the LTPAF fee is calculated based on the price of removal, the fee is intended to be used to fund other activities. The EIS, in describing the uses to which the LTPAF fees will be put, states that the fund will go to "projects" with priorities for acquisition of public access, construction or modification of public access facilities, and "other projects that demonstrably improve public recreational access." AR 2:744. Thus, TRPA explains, the LTPAF will fund improvements to access that provide a benefit equivalent to that of pier removal rather than funding actual pier removal. While this may be a viable approach in principle, it suffers from the same deficiencies identified with regard to the Blue Boating Program and buoy mitigation fees. TRPA has not included a "reasonably complete" discussion of what these projects might be, their efficacy, or whether the LTPAF will be able to afford them.

Lastly, for the reasons stated in part III(B)(2)(c)(i) above, inclusion of the Adaptive Management Program in the package of measures that will be used to mitigate impacts on recreation does not render the discussion of mitigation "reasonably complete."

For these reasons, TRPA's conclusion that construction of new piers authorized by the Amendments would not significantly adversely affect recreation was arbitrary and capricious.

Because the court resolves the recreational impacts issue on these grounds, the court does not address CLSC's argument that TRPA's decision to adopt the Amendments was invalidated by TRPA's eleventh-hour omission of other proposed restrictions on pier construction.

c. Recreational Impacts of Buoys

Plaintiffs separately argue that "the EIS failed to study the recreational access impacts of more buoys." The EIS recognizes that "shorezone structures" can negatively impact users of "small non-motorized watercraft," and that "buoys placed close together, particularly if located in large buoy fields that extend far into the Lake" may impair recreational fishing. AR 7:4184-85. Contrary to plaintiffs' characterization of the record, however, the EIS doess not conclude that the recreational impacts of shorezone structures generally, or buoys specifically, is significant.

The court acknowledges some ambiguity as to whether the above statement regarding "shorezone structures" implicates buoys. TRPA has represented that this section of the EIS "analyzed the impacts of buoys on recreation, including swimming and kayakers." TRPA's Reply at 14 n. 20. No other language in this section implicates both buoys and kayaking. The court therefore understands TRPA's statement to mean that shorezone structures, for purposes of this issue, include buoys.

In arguing that a study of these effects was required, plaintiffs cite several comments submitted during the EIS process complaining about the impacts of buoy fields on kayaking. AR 4:2562, 25:16517, 26:16681-82. Plaintiffs argue that the "substantial controversy" regarding buoys compelled such a study, citing Babbitt, 241 F.3d at 731. The cited portion of Babbitt concerned application of 40 C.F.R. § 1508.27, which provides that controversy regarding the magnitude of effects is an indication that those effects are significant for purposes of NEPA. 40 C.F.R. § 1508.27(b)(4). In Glenbrook Homeowners Ass'n, 425 F.3d at 615-16, the Ninth Circuit rejected a claim that controversy over a project compelled TRPA to complete an EIS, explaining that such a claim rests on NEPA regulations inapplicable to the Compact.

The inapplicability of 40 C.F.R. § 1508.27, however, does not mean that TRPA's omission of further discussion is unreviewable. The court must ask whether the EIS took a "hard look" at the potential impacts. Methow Valley, 490 U.S. at 352. Agency action is arbitrary and capricious where the agency has "entirely failed to consider an important aspect of the problem." McNair, 537 F.3d at 987. As the undersigned recently explained, an aspect of the problem may be "important" for purposes of this rule even where it is not "significant." S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., ___ F. Supp. 2d. ___, ___, 2010 WL 2720959, *18, 2010 U.S. Dist. LEXIS 67793, *62 (E.D. Cal. July 8, 2010) (reviewing the NMFS's silence as to certain factors in discussing whether agency action would jeopardize protected species in violation of the Endangered Species Act). Some issues are important enough to demand a statement from the agency as to whether or not they are significant. Id. Although no easy rule separates the important from the unimportant, where TRPA itself has stated that buoys impact recreation, the court is satisfied that the problem is important.

The fact that TRPA has commented on the issue then raises the question of whether the agency has taken the requisite "hard look." The EIS recognized the potential problem but included no discussion of its magnitude. This was not sufficient. The court does not hold, on the present record, that TRPA was required to engage in a full-blown EIS analysis of the impacts additional buoys would have on non-motorized vehicle access, replete with additional studies. Because these impacts were an important aspect of the problem, however, TRPA was required to at least state a decision as to whether or not these impacts were significant. This would have enabled plaintiffs to challenge that decision and presented the court with a record in which judicial review was possible. S. Yuba, ___ F. Supp. 2d. at ___, 2010 WL 2720959, *18, 2010 U.S. Dist. LEXIS 67793, *62.

4. Mitigation of Scenic Impacts

Plaintiffs challenge TRPA's finding that construction of new piers would not have significant adverse impacts on scenery. The EIS took the requisite hard look at these impacts and included a reasonably complete discussion of mitigation measures. TRPA's conclusion that piers would not adversely impact scenic values was neither arbitrary nor capricious.

a. Standards for Scenery

Scenery, unlike air and water quality or even recreational access, is difficult to quantify. TRPA has adopted four scenic thresholds, each of which addresses different elements of scenic quality in the basin. These thresholds may be summarized as encompassing:

(SR-1) the quality of scenic resources from viewpoints along major roadways in the Basin and from the Lake towards shore;

(SR-2) the quality of specific views of scenic features of the Basin's natural landscape that can be seen from major roadways and the Lake;

(SR-3) the "viewshed" from public recreation areas and certain bicycle trails; and

(SR-4) the design standards and guidelines for the built environment to produce built environments compatible with the natural, scenic, and recreational values of the region.

Comm. for Reasonable Regulation of Lake Tahoe, 311 F. Supp. 2d at 979 (citing, inter alia, Resolution 82-11, Ordinance 93-14).

TRPA uses at least two quantitative tools in assessing scenic value. One is a "contrast rating" that derives a numeric score based on the size of a building's facade, the coloration, the amount of glass, the building structure, the material texture, and the obstruction of the facade's perimeter. See Shorezone Property Owners' Request for Judicial Notice Ex. 2, at 144-50 (TRPA Design Review Guidelines, App. H, Visual Assessment Tool for the Review of Projects Located Within the Shoreland). Under this rating, higher scores present better scenic values. Second, and more simply, TRPA measures the amount of "visible mass."

TRPA also exercises informed judgment. For example, TRPA has determined that visibility of man-made objects is not a per se detriment to scenic quality. In discussing the scenic impacts of additional buoys, TRPA concluded that the scenic impact of a boat moored to a buoy "is not typically adverse because the presence of watercraft is an expected component of lake views and contributes to the scenic values of the lake." AR 2:782. TRPA concluded that the sight of too many boats clustered together, however, did degrade scenic quality. Id.

Plaintiffs here do not challenge TRPA's finding that the buoys authorized by the Amendments would not have adverse impacts on scenery.

b. Avoidance and Mitigation of Piers' Scenic Impacts

The EIS found that the addition of piers to the lake increases visible mass in the shorezone and thereby impacts scenic quality. AR 2:780. As with recreation, the Amendments address impacts on scenery through a combination of measures designed to minimize the impacts of new piers and measures designed to mitigate those impacts that cannot be avoided. The former measures are largely the same as those for recreation. Siting criteria restrict construction of new piers in areas where they would have a particularly dramatic impact on scenery, such as Shorezone Protective Areas and "naturally dominated shoreline." AR 2:780. Siting criteria also restrict pier density. Design criteria limit pier size, construction, and coloration. AR 2:740.

Despite these restrictions, new piers will still have a visual impact. The Amendments propose to mitigate these impacts by requiring owners of new piers to remove visible mass and to achieve certain contrast ratios. As to visible mass, in areas in attainment of the scenic thresholds, the owner must mitigate the pier's visible mass at a 1:1 ratio. Code § 54.6.D(1). In areas not in scenic attainment, all visible mass must be mitigated at a 1:1.5 ratio. Id. This mitigation "must occur first in the

The amended Ordinances impose slightly different, but more rigorous, standards for mitigation of visible mass of boat lifts.

shorezone of the project; once shorezone possibilities are exhausted, mitigation may occur in the project area shoreland." AR 2:740, Code § 54.6.D(2)(a). "Mitigation may either be removal or screening of visible structure." Code § 54.6.D(2)(d). As to contrast, whenever a landowner constructs a pier or otherwise undertakes a "project" in the shorezone, the landowner must bring the onshore project area up to a contrast rating of 25. Code § 54.6.C(1). Because the landowners were previously only required to reach a contrast rating of 21, this will likely lead to improvements over existing conditions with regard to contrast. AR 2:781.

The EIS also states, in passing, that the LTPAF fees and buoy fees will mitigate scenic impacts. AR 2:780, 782. The description of the LTPAF program does not appear to refer to scenic projects, and the court has previously explained these programs' indefiniteness. Nonetheless, mere inclusion of these measures in the discussion of mitigation of scenic impacts, without clear reliance thereon, does not doom the EIS's analysis.

In contrast with the EIS's discussion of mitigation of air, water, and recreational impacts, the above discussion is reasonably complete. Plaintiffs substantively disagree with TRPA's conclusion that the addition of visible mass on the lake can be mitigated by removal of visible mass on the shore. As noted, a new pier must be accompanied by an offset of visible mass and attainment of contrast rating that TRPA found would be an improvement for most parcels. Visible mass will also often be mitigated at a greater than 1:1 ratio. Although the scenic character of a parcel without a pier is undoubtedly different than that of a parcel with a pier, equivalently reduced onshore visible mass, and an improved contrast rating, TRPA concluded that the former was not better. This conclusion was based on an analysis of simulations of what these changes would look like in a variety of parcels and the agency's considered opinion. AR 2:779-82, 6:3744-56. TRPA's finding that the Amendments would not significantly adversely affect scenic values was neither arbitrary nor capricious.

5. Mitigation of Noise Impacts

Plaintiffs' argument regarding impacts on noise follows a familiar pattern. Plaintiffs argue that new boating facilities will induce additional boating, that more boats will mean more noise, and that the Amendments' proposals for mitigation of this impact are impermissibly vague. The EIS acknowledges that the Amendments will "increase noise levels throughout the area" by inducing "increases in boating activity." AR 2:791. This impact is purportedly mitigated by "[t]he Blue Boating Program, monitoring and enforcement programs funded by annual buoy fees, and the LTPAF." Id.

With respect to noise, the Blue Boating Program and LTPAF suffer the same problems discussed above. In addition to the Blue Boating Program elements pertaining to air and water quality, the Blue Boating Program will include "[a] noise reduction program to implement noise guidelines for the protection of wildlife and community well-being." Code § 54.15.A(2). The EIS's discussion of noise states that the Blue Boating Program will include "standards regarding appropriate engine types, engine emissions, and other boating features[] and use of appropriate engine equipment with regard to noise standards." AR 2:791. These features, equipment types, etc., are unspecified and their benefits unexplained. As to the LTPAF, the EIS asserts that this program will reduce noise by funding programs which encourage non-motorized boating, such as by improving recreational access. AR 2:792. The nature of these programs is not specified, nor is there any discussion of the extent to which such programs might induce would-be motorized boaters to use non-motorized boats instead.

The discussion of increased enforcement is more definite but nonetheless insufficient. Existing rules prohibit aftermarket boating devices that cause high "single event noise" and require low speeds in no-wake zones and Emerald Bay, which reduces engine noise. Code § 81.2.E(2)(b)(2), AR 11:7634. Present non-attainment of the noise thresholds results, in part, from inadequate enforcement of these limits. AR 11:7631. The Amendments will provide additional funding for enforcement, derived from buoy fees and possibly the Blue Boating Program. Thus, the EIS describes a reasonably specific method for reducing the impacts of noise. The EIS provides only a bare assertion, however, that the additional enforcement reduces impacts enough to render them insignificant. See also part III(B)(2)(c)(i) above.

Compare AR 2:791 (The Blue Boating Program and programs funded by the annual buoy fee would include monitoring and enforcement" of speed restrictions) with AR 2:830-31 (providing no reference to speed limits in describing the enforcement or mitigation fee aspects of the Blue Boating Program).

Accordingly, the TRPA's conclusion that the Amendments would not impose significant adverse effects on noise was arbitrary and capricious.

C. The Outstanding National Resource Water Standard

The Clean Water Act creates a scheme of cooperative federalism under which, inter alia, States are directed "to institute comprehensive water quality standards establishing water quality goals for all intrastate waters." PUD No. 1 v. Wash. Dep't of Ecology, 511 U.S. 700, 704 (1994) (citing 33 U.S.C. §§ 1311(b)(1)(C), 1313). These standards must incorporate an "`antidegradation policy.'" Id. at 718 (quoting 33 U.S.C. § 1313(d)(4)(B)). "The antidegradation policy and implementation methods shall, at a minimum," maintain three tiers of water quality. 40 C.F.R. § 131.12(a). California has adopted an antidegradation policy that is more nuanced than the minimum provided by 40 C.F.R. § 131.12(a), but which also incorporates the three federal tiers. Cal. State Water Resources Control Board, Memorandum: Federal Antidegradation Policy, Oct. 7, 1987, at 2 (citing Cal. SWRCB Resolution No. 68-16, "Statement of Policy with Respect to Maintaining High Quality Waters in California," and Cal. SWRCB Order No. WQ 86-17).

California protects Lake Tahoe under the most stringent of the three tiers, as an "Outstanding National Resource Water" ("ONRW"). This designation "prohibits any degradation of existing water quality standards with a limited exception for short-term or temporary changes in quality." Nat'l Wildlife Fed'n v. Browner, 127 F.3d 1126, 1127 (D.C. Cir. 1997) (citing Water Quality Standards Regulation, 48 Fed. Reg. 51,400, 51,403 (1983)). Article V(d) of the Compact provides that "[t]he regional plan shall provide for attaining and maintaining Federal State, or local air and water quality standards, whichever are strictest, in the respective portions of the region for which the standards are applicable." Plaintiffs argue that TRPA must therefore comply with the ONRW standard, but that the Amendments will cause decreases in water quality. TRPA opposes this claim solely by arguing that the Amendments will not result in degradation of water quality.

The parties agree that the California SWRCB designated Lake Tahoe as an ONRW in 1980.

This claim imperfectly parallels plaintiffs' EIS claim. For example, while the Compact's EIS provision obliges TRPA provide information sufficient to enable meaningful public participation, the ONRW claim appears to merely challenge TRPA's conclusion that the Amendments would achieve the requisite substantive result. Nonetheless, the deficiencies in the record identified in part III(B)(2), above, demonstrate that TRPA acted arbitrarily and capriciously in adopting the Amendments in the face of the ONRW designation.

IV. Conclusion

For the reasons stated above, plaintiffs' motion for summary judgment (Dkt. No. 87) is GRANTED and defendants' cross motion for summary judgment (Dkt. No. 98) is DENIED. Tahoe Regional Planning Agency Ordinance number 2008 — 10, adopted October 22, 2008, the Shorezone Amendments adopted at that time, the certification of the Environmental Impact Statement, and all findings based thereon are VACATED. The matter is REMANDED to defendant Tahoe Regional Planning Agency for further proceedings consistent with this order. The clerk shall enter judgment and close the file.

IT IS SO ORDERED.

DATED: September 16, 2010.

ORDER

Defendant has filed a Rule 59(e) motion to alter or amend the judgment of this court issued on September 16, 2010 (ECF No. 118). In that judgment, the court vacated Tahoe Regional Planning Agency Ordinance number 2008 — 10, adopted October 22, 2008, the Shorezone Amendments adopted at that time, the certification of the Environmental Impact Statement, and all findings based thereon. The court remanded the matter to defendant Tahoe Regional Planning Agency for further proceedings consistent with the order. The defendant timely filed a Rule 59(e) motion. For the reasons stated herein, the defendant's motion is DENIED.

I. Background

In 1968, California and Nevada entered into the Tahoe Regional Planning Compact, approved by Congress the following year. The Compact was amended in 1980 "to increase the level of environmental protection for the [Lake Tahoe] Basin as a whole."Tahoe-Sierra Pre. Concil, Inv v. TRPA, 322 F. 3d 1064, 1071 (9th Cir. 2003). The Compact, as amended, directed the Tahoe Regional Planning Agency ("TRPA") to develop "thresholds," or environmental standards "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 art. II(I). The TRPA regulates the region by promulgating rules and plans, including a Regional Plan adopted in 1987 and implemented by the TRPA's Code of Ordinances and Rules of Procedure. The TRPA also regulates on a project-specific basis. Before approving specific projects, the TRPA must prepare an environmental impact statement ("EIS"). Compact art. VII(a)(2). A project cannot be approved unless either "changes or alterations" have reduced the "significant adverse environmental effects to a less than significant level" or the agency determines that mitigation is "infeasible." Compact art. VII(d)(1) and (2).

In 2008, the TRPA adopted the Shorezone Amendments, which included provisions regarding piers, buoys, and other boating facilities. Before adopting the amendments, the TRPA prepared an EIS, which concluded that the amendments included mitigation measures that would mitigate negative environmental impacts to a

"less than significant" level. Relying on the EIS, the TRPA concluded that the Amendments satisfied the obligation to maintain and achieve thresholds. Plaintiffs in this case challenged the Amendments, arguing that TRPA's conclusions were arbitrary and capricious, and relatedly, that the TRPA's actions violated the Clean Water Act.

This court agreed that TRPA's conclusions that the Amendments satisfied TRPA's obligation to maintain and achieve thresholds, and that the Amendments' adverse impacts were mitigated to a "less than significant' level were arbitrary and capricious. The court also agreed that TRPA's conclusion that the Amendments comport with the Clean Water Act was arbitrary and capricious. Order at 10, ECF No. 118. In so doing, the court held that the EIS had improperly included existing unpermitted buoys as part of the `baseline' environmental conditions to which the environmental impact of the Amendments were compared. The court vacated TRPA Ordinance number 2008 — 10, adopted October 22, 1008, the Shorezone Amendments adopted at that time, the certification of the EIS, and all findings based thereon.

Defendants now move to alter or amend the judgment, and plaintiffs oppose.

II. Standard

A district court has wide discretion when considering a Rule 59(e) motion to amend a judgment. Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). Reconsideration under Rule 59(e) is appropriate if "the district court (1) is presented with newly considered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County, Ord v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

III. Analysis

Defendant requests alteration of the judgment on two bases. First, defendant objects to the court's conclusion that it was improper to include existing but unpermitted buoys as part of the baseline environmental conditions in the EIS. Second, defendant argues that the court should not have vacated the Amendments in their entirety. Defendants have not presented any new evidence, and do not argue that there is any intervening change in controlling law. The court assumes, therefore, that defendants are arguing that alteration or amendment is warranted because the court committed clear error, or that judgment was manifestly unjust.

A. The court's conclusion regarding the baseline was not clearly erroneous nor manifestly unjust.

The court acknowledges that whether or not to include existing but unpermitted buoys in the baseline for the EIS is a difficult question. However, the court's September 16, 2010 order thoroughly analyzed the issue, and defendants have not presented any new arguments against the court's conclusion in that order. The cases cited by the defendant on this point were discussed in the order, and were distinguished. Defendants argue thatCommunities for a Better Environment v. South Coast Air Quality Management District, 48 Cal. 4th 310 (2010) supports the proposition that the EIS for the Shorezone Amendments should use existing conditions, and not hypothetical ones as the baseline. As discussed in the prior order, Communities for a Better Environment was a state case decided under the California Environmental Quality Act ("CEQA"). That case involved an oil refinery that was permitted to operate all four of its boilers at maximum capacity, although no boiler actually operated at maximum capacity unless one of the other was shut down for maintenance. Id. at 322. The Court overturned an EIS that used the authorized limit, rather than the actual practice as the environmental baseline, holding that the use of "hypothetical allowable conditions as a baseline results in illusory comparisons." Id. The case at bar is distinguished from Communitites for a Better Environment. First, as noted, that case was decided under CEQA, while the instant case arises under the Compact. Second, the Compact's environmental protection goals go further than those of CEQA. As noted in the September 16, 2010 order, the Compact commands "TRPA to improve environmental quality, in some instances dramatically, by commanding setting and attaining environmental thresholds." Here, unlike inCommunities for a Better Environment, use of the existing rather than the authorized, environmental conditions as a baseline would result in less environmental protection, not more. This case is the converse ofCommunities for a Better Environment. Given the Compact's remediational goals, the court continues to conclude that the EIS's use of existing unpermitted buoys in the baseline was improper, and

that the conclusions based on that EIS were arbitrary and capricious.

The court notes that even if the court were to determine that it was proper to include the unpermitted buoys in the baseline, the adopted Amendments, which allow for one-to-one replacement of the unpermitted buoys, would not meet TRPA's obligation to achieve and maintain the thresholds.

The defendant cites another state court CEQA case, Fat v. County of Sacramento, 97 Cal.App.4th (2002), also thoroughly addressed in this court's September 6, 2010 order. The court continues to conclude that Fat does not carry weight here, and further that the Fat opinion did not contain any holding as to whether `sub silento' agency approval of existing unauthorized activity is in fact an agency action. Order at 27, ECF No. 118. Defendants have not raised any new arguments with respect to Fat.

B. Vacation of the Amendments in their entirety was not clearly erroneous nor manifestly unjust.

Defendant argues in its motion for reconsideration that the court should not have vacated the Amendments in their entirety, and defendant requests that the court amend its order to vacate "only the portions of the Amendments that authorize the permitting of boating facilities and allow the other portions of the Amendments to remain in place." Def.'s. Mot. at 12, ECF No. 122. Defendant claims that plaintiffs only challenged the portions of the Amendments dealing with permitting of boating facilities and that the court's remedy should have severed those challenged Amendments. Plaintiffs in turn argue that the defendants never requested such severance prior to the instant motion, and further that vacation of the Amendments as a whole was proper, given that passage of the Amendments relied on the EIS that the court held to be invalid.

The court agrees with the plaintiffs. The court's order vacated certification of the EIS, leaving no valid EIS on which the Amendments could be approved. The proper remedy in this case, therefore, was to set aside all of TRPA's actions that were based on the EIS which the court has found to be inadequate.

IV. Conclusion

For the foregoing reasons, defendants Rule 59(e) motion, ECF No. 121 is DENIED.

IT IS SO ORDERED.

DATED: November 23, 2010.