                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BEVERLY HILLS UNIFIED SCHOOL                     No.   17-55080
DISTRICT,
                                                 D.C. No.
              Plaintiff-Appellant,               2:12-cv-09861-GW-SS

 v.
                                                 MEMORANDUM*
FEDERAL TRANSIT
ADMINISTRATION; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                        Argued and Submitted July 14, 2017
                               Pasadena, California

Before: PREGERSON and WARDLAW, Circuit Judges, and CHEN,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
      Beverly Hills Unified School District (the “School District”) appeals the

district court’s denial of its motion for a preliminary injunction. We have

jurisdiction pursuant to 28 U.S.C. §1292, and we dismiss.1

      1.     The district court lacked jurisdiction to enjoin the Federal Transit

Administration (“FTA”) from entering into a full-funding grant agreement (“Grant

Agreement”) with the Los Angeles County Metropolitan Transportation Authority

(“Metro”) or to enjoin Metro from executing the design/build contract for the

Westside Subway Extension (“Design/Build Contract”). The School District

claims that the FTA violated the National Environmental Policy Act (“NEPA”) by

executing the grant agreement and design/build contract before issuing the

supplemental Environmental Impact Statement (“EIS”) contemplated by the

district court’s Remedy Order. The FTA is currently addressing deficiencies found

in the EIS, under the court’s remand.

      The School District argues that the FTA predetermined the outcome of the

environmental analysis. Metcalf v. Daley, 214 F.3d 1135, 1145 (9th Cir. 2000).

However, we may only reach the question of predetermination if the School

District has properly challenged final agency action.



      1
            We grant the School District’s motion to take judicial notice of
documents related to construction filed Feb. 16, 2017.

                                          2
      “When a claim is brought pursuant to the APA, the agency action must be

‘final agency action for which there is no other adequate remedy in court.’”

Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1103 (9th Cir. 2007) (quoting 5 U.S.C.

§ 704). For an agency action to be final, it “must mark the consummation of the

agency’s decisionmaking process,” and must be “one by which rights or

obligations have been determined, or from which legal consequences will flow.”

Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotation marks omitted).

      Under NEPA, the final agency action requirement merges with the

requirement that an agency prepare an EIS for “major Federal actions significantly

affecting the quality of the human environment.” 42 U.S.C. § 4332(c); see also

Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1106 (9th Cir.

2011). The School District argues that the FTA’s commitment of funds through

the Grant Agreement and the Design/Build Contract constitutes a “major federal

action[]”, 42 U.S.C. § 4332(c), and that the FTA therefore could not permissibly

enter into those agreements before completing the supplemental EIS.

      A financial commitment is only a major federal action under NEPA where it

constitutes an “irreversible and irretrievable commitment of resources.” Conner v.

Burford, 848 F.2d 1441, 1446 (9th Cir. 1988). An agency makes an irreversible

and irretrievable commitment where, for instance, it “spend[s] most or all of its


                                          3
limited budget on preparations useful for only one alternative.” WildWest Inst. v.

Bull, 547 F.3d 1162, 1169 (9th Cir. 2008).

      Here, the Grant Agreement and Design/Build Contract do not represent an

irreversible and irretrievable commitment to the Constellation Station alignment.

The FTA represented to the district court that the Grant Agreement and the

Design/Build Contract would not prevent it from making changes to the planned

alignment. The district court did not clearly err in finding that such changes were

possible. Accordingly, the agreements were not final agency action.2

      Given that the district court retains jurisdiction over the School District’s

NEPA action, the parties are free to return to it if subsequent events warrant, and

the court may continue in its supervisory role. When the court reviews the FTA’s

supplemental EIS, it may evaluate whether the FTA’s commitments—including

those made via the Grant Agreement and Design/Build Contract—in fact infected

the FTA’s analysis of alternatives. See Metcalf, 214 F.3d at 1145. At this point,

however, the School District’s challenge is premature.

      2
              Even if we had jurisdiction and found that the School District was
likely to succeed on the merits, we would conclude that the district court did not
abuse its discretion in denying a preliminary injunction under the traditional test
for injunctive relief. The court correctly weighed the equities and hardships, as
well as the public interest, given that actual construction is not scheduled to begin
until January 2018. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20
(2008).

                                           4
      2.     In an effort to avoid the final agency action requirement, the School

District argues that the Court may interpret its motion for preliminary injunction as

a motion to reconsider the Remedy Order. However, it did not make this argument

to the district court. Nor did it make any attempt to explain why the original order

was problematic. Accordingly, this argument is waived. See Gribben v. United

Parcel Serv., Inc., 528 F.3d 1166, 1171 (9th Cir. 2008) (arguments not presented to

district court are waived).

      DISMISSED.




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