                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 31 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SAVE STRAWBERRY CANYON,                          No. 11-15364
a non-profit California public benefit
corporation,                                     D.C. No. 3:10-cv-00797-VRW

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

STEVEN CHU, Secretary of the
United States Department of Energy;
AUNDRA RICHARDS, Site Office
Manager, United States Department of
Energy Berkeley Site Office; UNITED
STATES DEPARTMENT OF ENERGY,
a federal agency,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Vaughn R. Walker, District Judge, Presiding

                        Argued and Submitted July 16, 2012
                            San Francisco, California

Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Save Strawberry Canyon appeals the district court’s grant of summary

judgment to the Department of Energy on Save Strawberry Canyon’s challenge to

the adequacy of the Department of Energy’s Environmental Assessment (“EA”)

and the Department’s subsequent Finding of No Significant Impact (“FONSI”) for

a proposed plasma accelerator project (the “BELLA project”) at a Department of

Energy Laboratory in Berkeley, California. We affirm.

      We conclude that the Department took the necessary “hard look” at the

potential impacts of the plasma accelerator project in the EA and that the FONSI

was not arbitrary or capricious. See Native Ecosystems Council v. U.S. Forest

Serv., 428 F.3d 1233, 1239 (9th Cir. 2005). The EA sufficiently analyzed in

context the possibility of radiation exposure to the public, and it was not arbitrary

or capricious to determine that any radiation exposure would not be significant.

The Department described the system and procedures to minimize any possible

radiation to a level far below regulatory limits. The EA discussed the Lab’s

specialized expertise, to which we defer, in controlling and preventing radiation

exposure as a result of operating accelerators like the proposed plasma accelerator

for many years at the proposed project site. It was not arbitrary or capricious for

the Department to continue to utilize its own well-established technical procedures

and expertise in handling radiation from particle accelerators for the BELLA


                                           2
project. Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1124 (9th Cir.

2012) (“A court generally must be at its most deferential when reviewing scientific

judgments and technical analyses within the agency’s expertise.” (internal

quotation marks omitted)). Additionally, none of the intensity factors indicated

that the project will have a significant impact on the human environment.

      We also conclude that the EA satisfied the procedural requirements of the

National Environmental Policy Act. See Ctr. for Biological Diversity v. U.S.

Forest Serv., 349 F.3d 1157, 1165 (9th Cir. 2003). The EA sufficiently addressed

concerns regarding the impact of radiation from regular operation, accidents,

cumulative impacts, and other unauthorized use. The EA was not required to

address mitigation measures because the FONSI was not based on mitigating any

impacts. Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140, 1147 (9th Cir.

2000). The EA also adequately addressed hazardous materials and possible

alternatives for the project. Native Ecosystems, 428 F.3d at 1246. The EA

adequately responded to comments and appropriately cited to outside documents.

      AFFIRMED.




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