                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS
                                            §

  Casa Palmira, L.P.,                            §                No. 08-18-00009-CV

                        Appellant,               §                  Appeal from the

  v.                                             §                 171st District Court

  Taylor Child Care, L.P. a/k/a Taylor Child     §             of El Paso County, Texas
  Care, Limited, and Michael W. Hicks,
                                                 §               (TC# 2015DCV1729)
                        Appellee.
                                             §
                                           ORDER

       The Court received and filed the supplemental clerk’s record as requested in its order issued

April 18, 2018. The appeal is therefore reinstated, and the Appellant’s brief is now due November

18, 2018.

       IT IS SO ORDERED this 19thday of October, 2018.

                                                     PER CURIAM

Before McClure, C.J., Rodriguez and Palafox, JJ.


                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-M-02193-SCT

RE: ELECTION FOR HOUSE OF
REPRESENTATIVES DISTRICT 71, JOHN
REEVES, PETITIONER

DATE OF JUDGMENT:                         12/11/2007
TRIAL JUDGE:                              WINSTON KIDD
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   WILLIAM E. SPELL
ATTORNEYS FOR APPELLEES:                  CARLTON W. REEVES
                                          PRECIOUS T. MARTIN
                                          LISA M. ROSS
FOR ELECTION COMMISSION:                  BEN J. PIAZZA
NATURE OF THE CASE:                       CIVIL - ELECTION CONTEST
DISPOSITION:                              REVERSED AND RENDERED - 01/31/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DIAZ, PRESIDING JUSTICE, FOR THE COURT:

                             STATEMENT OF THE CASE

¶1.    On December 11, 2007, John Reeves filed a “Petition for Emergency Extraordinary

Writ or, in the alternative, Mandamus, or, in the alternative, for Interlocutory Appeal with

Immediate Stay, and for Other Relief” with this Court. Reeves asked this Court to vacate the

writ of mandamus issued by the Circuit Court of Hinds County compelling the Hinds County
Election Commission to certify the results of the House District 71election and the writ of

prohibition cancelling the partial re-vote ordered by the Commission. This Court entered an

order on December 13, 2007, vacating both the writ of mandamus and the writ of prohibition

issued by the trial court, and stating that an opinion would issue in due course. This is that

opinion.

                          FACTS AND PROCEEDINGS BELOW

¶2.    In the general election held on November 6, 2007, Wooten ran against Reeves, the

incumbent, for the District 71 1 seat in the Mississippi House of Representatives. Wooten

defeated Reeves by a vote of 1,455 to 1,258. Reeves filed a “Petition Contesting Election”

with the Hinds County Election Commission. On November 20, 2007, the Hinds County

Election Commission met and voted four to one to not certify the results of the House

District 71 election because of alleged, material irregularities in the voting process in four

split precincts.2 The Commission then voted four to one to have a re-vote on December 18,

2007, in the four split precincts where the alleged irregularities occurred.

¶3.    On December 4, 2007, Wooten filed a “Petition for Writ of Mandamus, Writ of

Prohibition, Emergency Hearing, and/or in the alternative, Complaint for Temporary

Restraining Order and Preliminary Injunction” in Hinds County Circuit Court. The circuit

court ruled that the Commission was required to certify the results of the District 71 election

       1
           District 71 is composed of portions of Hinds and Rankin Counties.
       2
        The four split precincts, all located in Hinds County, are 72A, 92B, 93B and 96A.
Connie Cochran, Chairwoman of the Hinds County Election Commission, listed the
following irregularities in an affidavit: Incorrect poll books were used in Precinct 92;
Precinct 92 did not open on time; and voters in Precincts 72, 93 and 96 were prevented from
voting in the District 71 race because they were given the wrong ballot.

                                              2
pursuant to Mississippi Code Sections 23-15-601 (Rev. 2007) and 23-15-603 (Rev. 2007).

Further, the court held that the Commission was without authority under Mississippi Code

Section 23-15-593 (Rev. 2007) to order another election in the four split precincts because

there were no failures to comply with Mississippi Code Annotated Section 23-15-591 (Rev.

2007) or Section 23-15-895 (Rev. 2007). Accordingly, the court issued a writ of mandamus

requiring the Commission to certify the results of the election and issued a writ of prohibition

cancelling the scheduled December 18 re-vote.

¶4.    Reeves filed his petition with this Court on December 11, 2007, pursuant to

Mississippi Rule of Appellate Procedure 21.          Reeves contended that the trial court

improperly issued the writ of mandamus because certifying election results is a discretionary

function performed by county election commissions. He also argued that the trial court erred

in issuing the writ of prohibition cancelling the re-vote because the Commission did not

exceed its authority in ordering the re-vote pursuant to Section 23-15-593.

¶5.    In response, Wooten argued that the Commission was required by law to certify the

results of the District 71 election, and thus the issuance of the writ of mandamus requiring

the Commission to certify the election was proper. Wooten also argued that the Commission

exceeded its authority in ordering a partial re-vote because the requirements of Section 23-

15-593 were not met. Therefore, she contended, the issuance of the writ of prohibition

cancelling the re-vote was proper.

                                       DISCUSSION

¶6.    All questions of law are considered de novo by this Court. Saliba v. Saliba, 753

So. 2d 1095, 1098 (Miss. 2000).

                                               3
I. Did the trial court err in issuing the writ of mandamus requiring the Commission
to certify the election?

¶7.    County election commissions are required by statute to certify election results within

ten days of the election: “[T]he commissioners of election shall canvass the returns, ascertain

and declare the result, and, within ten (10) days after the day of the election, shall deliver a

certificate of his election to the person having the greatest number of votes [.]” Miss. Code

Ann. § 23-15-601 (Rev. 2007). They are also required to deliver the returns of each election

to the Secretary of State. Miss. Code Ann. § 23-15-603 (Rev. 2007).

¶8.    However, if a county election commission determines that there were irregularities

in the voting process “to such an extent that it is impossible to arrive at the will of the voters”

at a particular precinct, the commission can have the ballot box “thrown out” and then “order

another election to be held at the box.” Miss. Code Ann. § 23-15-593 (Rev. 2007).

Accordingly, the commission does not have to certify the election results within ten days of

the election if it determines that such irregularities have occurred or if it orders a re-vote to

be held at the precinct where the irregularities occurred. Cf. Jefferson Davis County

Democratic Executive Comm. v. Davies, 912 So. 2d 837, 839 (Miss. 2005) (county

executive committee refused to announce, in accordance with Mississippi Code Section 23-

15-597 (Rev. 2001), name of nominee in primary election because of voting irregularities).

¶9.    In Hinds County Democratic Executive Comm. v. Muirhead, 259 So. 2d 692 (Miss.

1972), this Court stated the following with respect to the issuance of writs of mandamus:

       The proper function of mandamus is to supply a remedy for inaction on the
       part of an official or commission to whom it is directed. It is not a substitute
       for, nor intended to serve, the purpose of other modes of review. It can direct
       an official or commission to perform its official duty or to perform a

                                                4
       ministerial act, but it cannot project itself into the discretionary function of the
       official or the commission. Stated differently, it can direct action to be taken,
       but it cannot direct the outcome of the mandated function.

Id. at 694-95 (emphasis added). Because an election commission does not have to certify

election results within ten days of the election if it finds that irregularities in the voting

process have occurred that prevent the will of the voters from being determined, the

certification of election results is a discretionary function, not a ministerial act. Accordingly,

the trial court erred in issuing a writ of mandamus compelling the Commission to certify the

results of the District 71 race.

II. Did the trial court err in issuing the writ of prohibition cancelling the partial re-
vote?

¶10.   Mississippi Code Section 23-15-593 (Rev. 2007) provides:

       When the ballot box is opened and examined by the county executive
       committee in the case of a primary election, or county election commissioners
       in the case of other elections, and it is found that there have been failures in
       material particulars to comply with the requirements of Section 23-15-591 and
       Section 23-15-895 to such an extent that it is impossible to arrive at the will
       of the voters at such precinct, the entire box may be thrown out unless it be
       made to appear with reasonable certainty that the irregularities were not
       deliberately permitted or engaged in by the managers at that box, or by one (1)
       of them responsible for the wrong or wrongs, for the purpose of electing or
       defeating a certain candidate or candidates by manipulating the election or the
       returns thereof at that box in such manner as to have it thrown out; in which
       latter case the county executive committee, or the county election commission,
       as appropriate, shall conduct such hearing and make such determination in
       respect to said box as may appear lawfully just, subject to a judicial review of
       said matter as elsewhere provided by this chapter. Or the executive committee,
       or the election commission, or the court upon review, may order another
       election to be held at that box appointing new managers to hold the same.

In Barbour v. Gunn, 890 So. 2d 843 (Miss. 2004), this Court held that the trial court

properly ordered another election to be held pursuant to Section 23-15-593 where “an entire

                                                5
sub-precinct was not allowed to vote.” Id. at 847-48. We stated that there could be no

“interpretation of the ‘will of the voters,’ because [the] voters were never allowed to vote.”

Id. at 848.

¶11.   In the present case, the Hinds County Election Commission determined that voters in

three split precincts in District 71 were not allowed to vote because they were given the

wrong ballots. The Commission concluded that because voters in these three split precincts

were not allowed to vote in the District 71 race, there could be no interpretation of the will

of the voters at these precincts. The Commission’s conclusion was fully supported by our

holding in Barbour. Therefore, the Commission did not exceed its authority under Section

23-15-593 in ordering a re-vote to be held at these three precincts.

¶12.   The Commission also found that another split precinct in District 71 used incorrect

poll books and did not open on time. It determined that such irregularities precluded an

interpretation of the will of the voters. This Court finds that the Commission’s determination

that the will of the voters in this precinct could not be interpreted was proper. Accordingly,

the Commission did not exceed its authority in ordering a re-vote at this precinct.

¶13.   “The writ of prohibition is extraordinary and remedial and may issue only from a

court of original jurisdiction and lies only to control an inferior court or tribunal in the

attempted exercise of judicial powers in excess of its jurisdiction.”       Wilby v. Bd. of

Supervisors, 226 Miss. 744, 750, 85 So. 2d 195, 198 (1956) (internal quotation marks and

citation omitted). Because the Commission did not exceed its authority in ordering a re-vote

to be held in the four split precincts, the trial court erred in issuing a writ of prohibition

cancelling the re-vote scheduled for December 18, 2007.

                                              6
                                     CONCLUSION

¶14.   For the foregoing reasons, the judgment of the trial court is reversed, and the writs

of mandamus and prohibition are vacated.

¶15.   REVERSED AND RENDERED.

     SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND
LAMAR, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. GRAVES, J.,
NOT PARTICIPATING.

                                             7


383 F.3d 1082
GROUND ZERO CENTER FOR NON-VIOLENT ACTION; Waste Action Project; Washington Physicians for Social Responsibility; Cascadia Wildlands Project; Peace Action of Washington; Mary Fleysteen; Glen Milner, Plaintiffs-Appellants,v.UNITED STATES DEPARTMENT OF THE NAVY; Duane Baker, Jr., Captain, Commanding Officer, Naval Submarine Base, Bangor; Bruce A. Gustion, III, Captain, Commanding Officer, Strategic Weapons Facility, Pacific, Naval Submarine Base, Bangor, Defendants-Appellees.
No. 02-36096.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 10, 2004.
Filed September 21, 2004.

David S. Mann, Gendler & Mann, LLP, Seattle, WA, for the plaintiffs-appellants.
Kathryn E. Kovacs, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellees.
Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-01-05339-FDB.
Before BRUNETTI, McKEOWN, and GOULD, Circuit Judges.
GOULD, Circuit Judge:

1
At issue is a challenge under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., to the United States Navy's ("Navy") Trident II missile upgrade program at its submarine base in Bangor, Washington. Appellants Ground Zero Center for Nonviolent Action, Waste Action Project, Washington Physicians for Social Responsibility, Cascadia Wildlands Project, Peace Action of Washington, Mary Fleysteen, and Glen Milner, (collectively, "Ground Zero") maintain that the Navy failed to review the probable significant environmental impacts of an accidental explosion of a Trident II(D-5) missile during operations at Bangor, and failed to consult the National Marine Fisheries Service ("NMFS") regarding the possible effects of such an explosion on threatened salmon species inhabiting the waters adjacent to the Bangor submarine base.

2
* The Navy developed the Fleet Ballistic Missile system during the Cold War as a "survivable retaliatory strike force," in the Navy's terminology, that can be launched from submarines deployed at sea if there is a prior nuclear attack against the United States.1 The Trident II, or D-5, intercontinental ballistic missile, first deployed by the Navy in 1990, is the sixth and most recent generation of this missile system. The Trident II missile is the replacement for the fifth generation Trident I, or C-4, missile. The Trident I missile was initially deployed in 1979, and is presently being phased out of the Navy's arsenal.

3
The Navy's Ohio, or Trident, class ballistic missile submarine serves as the primary launching platform for the Trident I and II missiles. Each of the eighteen Trident class submarines in the Navy's fleet is equipped to carry and launch twenty-four Trident missiles, and this program is a major part of the United States's strategic arsenal. Two naval bases serve as the home ports for the Trident submarine fleet: Naval Submarine Base Kings Bay, Georgia, located on the Atlantic Ocean just north of the Florida border, and Naval Submarine Base Bangor, Washington, located on the eastern shoreline of the Hood Canal in the Puget Sound Basin, approximately 15 miles west of the city of Seattle and 10 miles north of the city of Bremerton.

4
Naval Submarine Base Bangor ("Bangor") was selected by the Navy in the early 1970's as the first dedicated full-support facility in the continental United States for the Trident I missile system. After a review of eighty-nine potential sites considering both the operational requirements and the environmental impacts of the Trident program, the Navy settled upon Bangor as its prospective site. Upon selection of Bangor, the Navy undertook a detailed assessment of the impacts of Trident program on the community and environment surrounding the base, culminating in issuance of a final Environmental Impact Statement ("EIS") in July, 1974.2

5
The Navy supplemented the 1974 EIS four times: once in 1976, twice in 1977, and once in 1978. Both the 1974 EIS and the four supplements considered that the Bangor base could be upgraded at an unspecified future date to accommodate the Navy's conversion from the fifth generation Trident I to the sixth generation Trident II system.

6
In the mid-1980's, the Navy settled on a plan to upgrade eight Trident submarines in the Bangor fleet, originally fitted to carry Trident I missiles, so that they could accommodate the newer-generation Trident II missile. This plan required a corresponding upgrade of the Trident I storage and handling facilities at Bangor to make these facilities compatible with the larger Trident II missile. Because the specifications for the final upgrade plan, the "D-5 [Trident II] Backfit Facility Program" ("Backfit Program"), varied from the conversion assumptions made in the 1974 EIS and its supplements, the Navy in 1989 issued an Environmental Assessment addressing the potential impact of the Backfit Program on the Bangor environment. The 1989 Environmental Assessment incorporated the assumptions drawn in the 1974 EIS, and independently considered only new requirements and impacts not addressed in the 1974 EIS. Based on the analysis in the 1989 Environmental Assessment, the Navy issued a Finding of No Significant Impact, concluding that "the TRIDENT D-5 Upgrade Program at [Bangor] will not have a significant impact on the quality of the human environment."

7
The Navy planned to commence construction on the Backfit Program in 1989, at a projected cost of $248 million. But the sudden end of the Cold War led to a domestic debate on the necessary scope of the Fleet Ballistic Missile system, and resulted in postponement of the Backfit Program. In 1994, following a comprehensive Nuclear Posture Review, President William Jefferson Clinton scaled back Trident operations at Bangor, but determined that the Backfit Program should proceed at a reduced scale. The revised Backfit Program, about one-third the size and one-tenth the cost of the original 1989 plan, commenced in 2000.

8
In light of President Clinton's decision to redesign the scope of the Backfit Program, the Navy reexamined the 1974 EIS and supplements, as well as the 1989 Environmental Assessment. The Navy's review concluded that because the scaled back Backfit Program was a reduced version of the upgrade program first analyzed in 1989, the environmental impacts of the Backfit Program were consistent with and contained in the 1989 Environmental Assessment analysis. The Navy therefore did not prepare further NEPA documentation for the Backfit Program.

9
In March 1999, the National Marine Fisheries Service ("NMFS") listed as threatened under the ESA two fish species found in the vicinity of the Bangor base, the Hood Canal Summer Run Chum Salmon and the Puget Sound Chinook Salmon. In coordination with the NMFS, the Navy reanalyzed the potential impact of the Backfit Program on these threatened species in a series of Biological Assessments. The Navy's Biological Assessments concluded that the Backfit Program would have no adverse effect on these species. The Navy also forwarded the results of these assessments to the NMFS, which did not issue a response. The Navy decided that it did not need to prepare any NEPA documentation in response to the threatened species listing.

10
On June 22, 2001, Ground Zero filed suit in the United States District Court for the Western District of Washington alleging violations of NEPA and the ESA, and seeking injunctive relief against the Backfit Program. On January 17, 2002, the district court granted the Navy partial summary judgment with respect to Ground Zero's claims that the Navy was required to evaluate the environmental impacts of storing and handling Trident II missiles armed with nuclear warheads at Bangor, the environmental impacts of potential terrorist attacks on the base, and the environmental impacts of a possible earthquake or tsunami. After oral argument, the district court on October 28, 2002, granted the Navy summary judgment on Ground Zero's remaining claims. The district court held: (1) that the Navy was not required to publish a new EIS for the Backfit Program because the impacts of the Backfit Program were covered in the 1989 Environmental Assessment and the Navy's decision not to publish an EIS was entitled to deference; (2) that the Navy was not required to publish a supplemental EIS for the Backfit Program; and (3) that the Navy complied with the ESA when it evaluated impacts of the Backfit Program on the threatened salmon species.

11
On this appeal, Ground Zero makes three contentions. First, Ground Zero asserts that NEPA requires the Navy to issue a new or supplemental EIS assessing the environmental risk of an accidental explosion of a conventionally armed Trident II missile during operations at Bangor. Second, Ground Zero claims that NEPA further requires the Navy to assess the environmental impact that would occur from an accidental explosion of a Trident II missile armed with nuclear warheads.3 Third, Ground Zero contends that the Navy violated the ESA by failing to consult with the NMFS about the potential effect of an accidental Trident II explosion on the threatened salmon species found in Hood Canal waters. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

II

12
We review de novo a district court's grant of summary judgment. Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.1995). "We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law." United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). We may affirm summary judgment on any ground supported by the record. Solomon v. Interior Reg'l Hous. Auth., 313 F.3d 1194, 1196 (9th Cir.2002). Because neither NEPA nor the ESA contains an express provision for judicial review, our review of agency decision-making under these statutes is governed by the judicial review provisions of the Administrative Procedure Act. 5 U.S.C. § 706(2)(A). We may overturn such agency decision-making only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Id.

III

13
We first address the NEPA issues.

14
* NEPA requires that a federal agency contemplating action "consider every significant aspect of the environmental impact" of the proposed action, and "inform the public that it has indeed considered environmental concerns in its decision-making process." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal quotation marks omitted); see also 42 U.S.C. § 4331. NEPA's purpose is to ensure that federal agencies take a "hard look" at environmental consequences before committing to action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

15
Because NEPA is an "essentially procedural" statute, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), it does not mandate "that agencies achieve particular substantive environmental results," Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Compliance with NEPA is instead determined on the basis of whether an agency has adhered to NEPA's procedural requirements. Id.

To this end, NEPA provides that:

16
[A]ll agencies of the federal government shall include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

17
(i) the environmental impact of the proposed action,

18
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

19
(iii) alternatives to the proposed action,

20
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

21
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

22
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.

23
42 U.S.C. § 4332(2)(c).

24
The process agencies must follow in carrying out this mandate is outlined in NEPA's implementing regulations. Before undertaking a proposed action, an agency must first prepare an Environmental Assessment, a "concise public document" discussing the need for and alternatives to the action, as well as the environmental impacts of both the action and the potential alternatives. 40 C.F.R. § 1508.9. If the Environmental Assessment reveals that the proposed action will have a significant environmental impact, the agency must further prepare a detailed EIS providing a "full and fair discussion of significant environmental impacts," and informing "decision-makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. Conversely, if the Environmental Assessment leads the agency to determine that the contemplated action will not have an appreciable environmental effect, then the agency may forego the EIS and instead prepare a Finding of No Significant Impact, a document "briefly presenting the reasons why an action ... will not have a significant effect on the human environment." 40 C.F.R. § 1508.13.

B

25
Ground Zero first contends that the Navy violated NEPA because the Navy arbitrarily and capriciously failed to consider the probable significant environmental impacts that would follow from an accidental explosion of a conventional or nuclear Trident II missile. Ground Zero asserts that the Navy had an obligation to prepare an EIS assessing these impacts before commencing the Backfit Program. Ground Zero further asserts that events occurring after the start of the Backfit Program required the Navy to prepare supplemental NEPA analysis.

26
The Navy's threshold defense is that the decision to deploy Trident II missiles to Bangor, and consequently to implement the Backfit Program, was presidential action embodied in a 1994 Presidential Decision Directive issued by President Clinton. The Navy contends that because NEPA does not apply to presidential action, the Navy was not required to assess the environmental impacts of this decision.4

27
The Navy is correct that NEPA's procedural requirements do not apply to presidential action. By its language, NEPA applies to "all agencies of the federal government." 42 U.S.C. § 4332(2). The President lies outside of NEPA's definition of a "federal agency." See 40 C.F.R. § 1508.12 (providing that the term "federal agency" as used in NEPA "does not mean the Congress, the Judiciary, or the President.").

28
We therefore assess whether the decision to deploy Trident II missiles at Bangor and to implement the Backfit Program was one made by President Clinton, or by the Navy. The Navy's contention rests primarily on Presidential Decision Directive Number 30 ("PDD 30"), a largely classified 1994 document that the Navy represents to contain President Clinton's decision to base the Trident II program at Bangor. We do not rely on the Navy's representation of a classified document's contents. Although we would review the classified information in the record if we thought it necessary, we do not do so here because other documents in the record persuade us that it cannot be genuinely disputed that President Clinton used PDD 30 to order the Navy to locate Trident II missiles at Bangor and to proceed with the Backfit Program.

29
The record contains unchallenged statements of two persons intimately familiar with the Backfit Program. These statements establish without equivocation that implementation of the Backfit Program was ordered by the President as Commander-in-Chief. Rear Admiral Dennis M. Dwyer is the Navy's Director of Strategic Systems Programs, and is the manager of the Backfit Program. Rear Admiral Dwyer states in a sworn declaration that in 1994 "the President decided that the Backfit effort at Submarine Base Bangor should go forward but at reduced numbers," and further emphasizes that it was "[t]he President's decision" to implement the scaled back Backfit Program. Marvin J. Frye is Bangor's Environmental Director. Environmental Director Frye states in a file memorandum in the Backfit Program administrative record that in 1994 "[a]s a result of the Nuclear Posture review, the President decided to backfit 4 Ohio class submarines at Naval Submarine Base Bangor with Trident II (D5) missiles. (Presidential Decision Document No. 30). The Navy's Strategic Systems Programs Office then reconfigured the D5 program to meet this executive decision." Environmental Director Frye's memorandum is dated May 7, 2001, nearly a month and a half before the filing of Ground Zero's complaint in the present case.5

30
Ground Zero offered no evidence to counter the position that PDD 30 ordered the Navy to undertake the Backfit Program. Ground Zero instead offers the argument that PDD 30 is not of controlling importance because the Backfit Program was originally devised by the Navy, and, under Ground Zero's argument, PDD 30 only ordered that the Navy scale back its original Trident II deployment plan.

31
We consider this argument by Ground Zero to be unpersuasive. It is true that the Navy did conceive the original Backfit Program in the mid-1980's. But it is also true that the Navy took no steps to implement the Backfit Program at Bangor until after President Clinton's 1994 Nuclear Posture Review. The Navy's prior planning for the eventual upgrade of Bangor's facilities to accommodate the Trident II missile in the event of the President ordering future deployment does not decide the issue of whether the Navy had actual discretion in the final decision to site the Trident II missile at Bangor. Because the record unassailably shows that the President made a decision as Commander-in-Chief to site the Trident II missile arsenal at Bangor, whatever had been recommended by the Navy, we are confronting a presidential decision that is not a proper subject of NEPA review.

32
Given the Navy's uncontroverted assertions regarding PDD 30, we hold that there is no genuine issue of material fact that it was the President, and not the Navy, who made the decision to order deployment of the Trident II missile to Bangor. When the President as Commander-in-Chief makes a presidential decision to deploy a weapons system at a particular military installation, the military must follow the President's order and has no ability to disregard it. Accordingly there is no agency decision regarding the President's military directive suitable for review under NEPA.

C

33
The conclusion that it was the President's decision to order implementation of the Backfit Program does not wholly end our inquiry. Ground Zero contends that regardless of whether the President or the Navy was responsible for the deployment of the Trident II missile, the Navy retained some discretion over the implementation of the Backfit Program at Bangor. The Navy admits that it had discretion over the siting and modification of facilities required for the Trident II upgrade. And, the Navy also has discretion over how to undertake operations involving Trident II missiles, including practical decisions about the storage, transportation, and handling of the missiles located at Bangor, as well as the routine loading and unloading of the missiles from submarines. The remaining dispositive NEPA issue is whether within the purview of this limited discretion the Navy complied with NEPA's procedural requirements. The only environmental impacts that Ground Zero alleges require NEPA review are those stemming from a possible accidental Trident II missile explosion.

34
The Council on Environmental Quality NEPA implementing regulations provide that federal agencies must examine the "reasonably foreseeable" environmental effects of their proposed actions when conducting environmental review. 40 C.F.R. § 1502.16, 1508.8(b). We have "rejected the notion that every conceivable environmental impact must be discussed in an EIS." No GWEN Alliance of Lane County, Inc. v. Aldridge, 855 F.2d 1380, 1385 (9th Cir.1988). We have instead held that "[a] reasonably thorough discussion of the significant aspects of the probable environmental consequences is all that is required by an EIS." Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). "An EIS need not discuss remote and highly speculative consequences." Id. at 1283; see also Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1026-27 (9th Cir.1980).6

35
The Navy has studied the risk of an explosive accident occurring during Trident II missile loading and unloading operations. A Navy study conducted between 1992 and 1996 determined the risk of any accident occurring during these operations to be less than one in one million. And even assuming that such an accident did occur, this study further concluded the risk of the mishap leading to an explosion is between one in 100 million and one in one trillion. The risk of accidental explosion is estimated by multiplying the risk of any accident by the risk that an accident will yield explosion. The product of the probabilities cited in the Navy's report is infinitesimal, and such remote possibilities do not in law require environmental evaluation.

36
Ground Zero raises three arguments to counter the Navy's risk analysis. Ground Zero presents the declaration of an expert, who concludes that the Navy's risk calculations are "unbelievable." This declaration, unsupported by analysis or documentation, does not render the Navy's decision to rely on its study arbitrary and capricious. Agencies are normally entitled to rely upon the reasonable views of their experts over the views of other experts. See Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir.1992) ("To set aside the Service's determination in this case would require us to decide that the views of Greenpeace's experts have more merit than those of the Service's experts, a position we are unqualified to take."); see also Marsh, 490 U.S. at 378, 109 S.Ct. 1851 ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.").

37
Ground Zero contends that the Navy must assess the risk of Trident II accident and explosion in an EIS because the Navy incorporated this risk, however slight, into its planning of Bangor's base layout. However, the Navy's base planning procedures are not relevant for our purposes of evaluating the need for NEPA review. The Department of Defense ("DoD") regulations that govern base planning have different aims and standards than NEPA. The DoD regulations mandate "maximum possible protection" to base personnel, property, and the environment surrounding the base. The Navy may have decided that "maximum possible protection" entailed consideration of remote and speculative risks. But that does not alter NEPA's requirements that agencies assess only "reasonably foreseeable" risks. 40 C.F.R. § 1502.16, 1508.8(b).

38
Ground Zero points to 40 C.F.R. § 1502.22, which requires that agencies discuss "reasonably foreseeable significant adverse effects" where "there is incomplete or unavailable information." This regulation defines as "reasonably foreseeable" "impacts with catastrophic consequences, even if their probability of occurrence is low." Id. Ground Zero interprets this regulation to require the Navy to assess the environmental impact of an accidental Trident II explosion at Bangor because it asserts that such an explosion would have "catastrophic consequences." However, this regulation applies only to effects for which there is "incomplete or unavailable information." As we have previously discussed, the Navy has made detailed study of the risk of an accidental explosion, and has determined this risk to be extremely remote. Upon this conclusion, which is well grounded in the record, NEPA requires no more.7

IV

39
We next address Ground Zero's ESA claims.

40
* The ESA states that a federal agency must ensure that its actions are "not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). ESA section 7 requires that an agency considering action consult with either the Fish and Wildlife Service ("FWS") or the NMFS if the agency "has reason to believe that an endangered species or a threatened species may be present in the area" affected by the proposed action, and "implementation of such action will likely affect such species." 16 U.S.C. § 1536(a)(3); see also 50 C.F.R. § 402.14(a).

41
The ESA's implementing regulations provide exceptions to the formal consultation requirement. 50 C.F.R. § 402.14(b). First, an agency may elect to engage in informal preliminary consultation with the FWS or NMFS to help determine whether the proposed action will result in environmental impacts requiring formal consultation. 50 C.F.R. § 402.13. If, after this informal consultation, the agency and the FWS or NMFS concur that the proposed action is not likely to have an adverse effect on threatened or endangered species, then no further consultation is required. Id. Second, the agency may choose to prepare a Biological Assessment evaluating "the potential effects of the action on listed and proposed species and designated and proposed critical habitat" and determining "whether any such species or habitat are likely to be adversely affected by the action." 50 C.F.R. § 402.12(a). If the Biological Assessment concludes that no listed species or critical habitat is likely to be adversely affected by the planned action, and the FWS or NMFS concurs, then the agency is relieved of the requirement of formal consultation. Id. § 402.12(k)(1).

B

42
Ground Zero contends that the Navy violated section 7 of the ESA because the Navy did not consult with the NMFS on the potential impact of an accidental Trident II missile explosion on two threatened salmon species that may inhabit the waters outside Bangor. Ground Zero asserts that the ESA required the Navy to consult with the NMFS to ensure that an explosion of a Trident II missile during loading operations at Bangor would not jeopardize the continued existence of these threatened species.8

43
We reject Ground Zero's contention first because the Navy lacks the discretion to cease Trident II operations at Bangor for the protection of the threatened species. The regulations implementing the ESA provide that section 7 applies to "all actions in which there is discretionary Federal involvement or control." 50 C.F.R. § 402.03. "Where there is no agency discretion to act, the ESA does not apply." Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125-26 (9th Cir.1998). As for the environmental implications for the listed species of the basic decision by the President to site the Trident II missiles at Bangor, the requirements of ESA section 7 for the Navy are not invoked; because any consultation by the Navy with NMFS regarding the risks of accidental Trident II explosion on the threatened salmon species, if such risks arise solely from the President's siting decision, would be an exercise in futility.

44
Even when we consider that there are some aspects of the Backfit Program as to which the Navy has discretion in its actions, we must also recognize that Ground Zero's ESA claim rests wholly on the risks of accidental Trident II missile explosion. In these circumstances, we do not think that risks of missile explosion, based on any discretionary acts of the Navy, required additional ESA section 7 consultations because the likelihood of jeopardy is too remote. The ESA requires federal agencies to ensure that agency action "is not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). Also, the ESA protects against adverse modification to designated critical habitat of such species. Id. As we have explained, the Navy's prior studies revealed the risk of an accidental explosion of a Trident II missile to be remote, and indeed, the calculated risk is infinitesimal. And so it was not arbitrary and capricious for the Navy to conclude that it was not required to consult with NMFS about the possibility that a Trident II missile explosion would jeopardize the listed salmon or adversely affect their habitat.

V

45
We affirm the district court's grant of summary judgment to the Navy on Ground Zero's claims. Because the Navy has only limited discretion in the operation of the Backfit Program, and within that discretion the risk of a Trident II missile explosion is remote, NEPA does not require the Navy to issue an EIS assessing the environmental effects of such an accident at Bangor. Similarly, because of the Navy's limited discretion and the remoteness of a possible accidental missile explosion, the ESA did not require the Navy to consult with the NMFS about whether such an accident would jeopardize the continued existence or adversely affect the critical habitat of threatened salmon species inhabiting the Hood Canal.

46
AFFIRMED.

Notes:

1
 The record contains excerpts from a Navy website describing the Fleet Ballistic Missile system. A current description of the Navy's Trident system can be found at the Navy's public website, http:// www.navy.mil

2
 An environmental challenge based on NEPA to this 1974 EIS was rejected by the United States Court of Appeals for the District of Columbia CircuitSee Concerned About Trident v. Rumsfeld, 555 F.2d 817 (D.C.Cir.1976).

3
 Ground Zero does not seek to require the Navy to document the environmental consequences of a nuclear detonation. Ground Zero rather asserts that the Navy is required to consider the effect of a conventional explosion of the propellant fuel in a Trident D-5 missile dispersing radio-active materials into the environment

4
 Furthermore, the Navy argues that because the APA does not provide for judicial review of presidential actions, we are without power to review President Clinton's decision to site the Trident II at Bangor. In view of the fact that Ground Zero has not sued the President and in view of our rationale for decision, we need not assess this issue

5
 On the date of his inauguration, President Clinton issued Presidential Decision Directive Number 1 ("PDD 1"). This document, now declassified, established instrumentalities "to inform[federal government] departments and agencies of Presidential directives." President Clinton stated in PDD 1 his intent "to promulgate Presidential decisions on national security matters" through Presidential Decision Directives. This background further supports the logical conclusion that an executive decision on the deployment of the Trident II missile, an integral part of America's strategic defense arsenal, would be expected to be contained in a Presidential Decision Directive

6
 For example, we have held that agencies performing NEPA review are not required to consider the environmental consequences of the increased risk of nuclear war resulting from construction of military communications towers,No GWEN, 855 F.2d at 1381, 1386, the environmental effects from the failure of a dam from a catastrophic, but highly unlikely, earthquake, Warm Springs, 621 F.2d at 1026-27, or how remotely possible land-use changes might bear on the environmental effects of a new dam, Trout Unlimited, 509 F.2d at 1283-84.

7
 The Navy also requested that, in assessing NEPA compliance, we consider the effect of the Supreme Court's recent decision inDepartment of Transportation v. Public Citizen, ___ U.S. ___, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (holding that NEPA does not require the Federal Motor Carrier Safety Administration to evaluate the environmental effects of cross-border motor carrier operations because the agency lacked the discretion to prevent those operations). Because our holding rests on alternative remoteness grounds, it is unnecessary to assess the possible effect of Public Citizen. Moreover, because the parties did not address the issue in briefing, we decline without necessity to depart from our customary practice of only considering arguments that are briefed. See, e.g., Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir.2003) ("In general, we will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief." (internal quotation marks and brackets omitted)). We adhere to this approach for sound prudential reasons. See, e.g., Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir.2003) ("Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court."); Abovian v. INS, 219 F.3d 972, 981 (9th Cir.2000) (Wallace, J., dissenting) ("There is a risk that the court, lacking the analysis ordinarily provided by adversarial parties, will reach the wrong conclusion on the merits and create poor precedent...."). We thus need not express and do not express any view in this case about the impact of Public Citizen on our assessment of the scope of NEPA's requirements.

8
 The record shows that the Navy consulted NFMS and performed a series of Biological Assessments analyzing the impact of discretionary construction and facility modification portions of the Backfit Program. The Navy's assessments concluded that discretionary Backfit Program operations would have no adverse effect on the listed species, and the NMFS concurred in these conclusions. Ground Zero does not challenge the conclusions of these Biological Assessments


[Cite as S. Euclid v. Bautista-Avila, 2015-Ohio-3236.]

                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA

                               JOURNAL ENTRY AND OPINION
                                       No. 102353

                              CITY OF SOUTH EUCLID
                                                               PLAINTIFF-APPELLANT

                                                         vs.

                        FRANCISCO BAUTISTA-AVILA
                                                               DEFENDANT-APPELLEE

                                            JUDGMENT:
                                             AFFIRMED

                                       Criminal Appeal from the
                                     South Euclid Municipal Court
                                        Case No. TRC 1302336

        BEFORE:          Laster Mays, J., McCormack, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                              August 13, 2015
                                      -i-

ATTORNEY FOR APPELLANT

Brian M. Fallon
P.O. Box 26267
Fairview Park, Ohio 44126

ATTORNEYS FOR APPELLEE

Richard L. Fenbert
S. Michael Lear
Brian A. Murray
Larry W. Zukerman
Zukerman, Daiker & Lear Co., L.P.A.
3912 Prospect Avenue
Cleveland, Ohio 44115
ANITA LASTER MAYS, J.:

       {¶1} Plaintiff-appellant, city of South Euclid (“South Euclid”), appeals a decision

from the South Euclid Municipal Court that granted a motion to suppress standardized

field sobriety tests (“SFSTs”) results and ruled that the totality of the circumstances failed

to support probable cause to arrest the appellee, Francisco Bautista-Avila (“Bautista”).1

       {¶2} South Euclid presents two assignments of error. They first argue that the

trial court erred in finding that the SFSTs results were inadmissible. South Euclid

further argues that the trial court erred in finding that there was no probable cause for the

arrest of Bautista.

       {¶3} After a thorough review of the trial court record, we affirm.

Standard of Review

       {¶4} Appellate review of a trial court’s ruling on a motion to suppress evidence

presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, 797 N.E.2d 71. During a hearing on a motion to suppress evidence,

the trial judge acts as the trier of fact and, as such, is in the best position to resolve factual

questions and assess the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366,

582 N.E.2d 972 (1992). An appellate court reviewing a motion to suppress is bound to

       1
        Bautista was also arrested for failure to have a valid driver’s license under the South Euclid
Codified Ordinance 335.071. That charge is still pending in the South Euclid Municipal Court.
accept the trial court’s findings of fact where they are supported by competent, credible

evidence. State v. Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993).

Accepting these facts as true, the appellate court independently reviews the trial court’s

legal determinations de novo. Cleveland v. Hunter, 8th Dist. Cuyahoga No. 91110,

2009-Ohio-1239, ¶ 23-25, citing Burnside at 158.

I.     Facts and Procedural Posture

       {¶5} On August 24, 2013, Bautista’s vehicle was randomly stopped by the South

Euclid Police Department at a sobriety checkpoint.       When Officer Robert Baldyga

(“Baldyga”) approached the vehicle, he noticed a moderate odor of alcohol coming from

the vehicle.   After observing several open beer bottles in the back seat of the vehicle,

Baldyga asked Bautista if he had been drinking alcohol, to which Bautista replied that he

had. Baldyga then asked Bautista to exit the vehicle so SFSTs could be administered on

him.

       {¶6} Three SFSTs were administered:         the horizontal gaze nystagmus test

(“HGN”), the walk-and-turn test (“WAT”), and the one-leg stand test (“OLS”).         Each

was administered by Baldyga, who was the contact officer at the checkpoint.     After the

administration of the SFSTs, Baldyga placed Bautista under arrest and charged him with

operating a motor vehicle while under the influence in violation of South Euclid Codified

Ordinance 333.01(A)(1)(a).

       {¶7} Bautista filed a motion to suppress the evidence arguing that the SFSTs were

not administered in substantial compliance with the guidelines established by the National
Highway Traffic Safety Administration (“NHTSA”), and that Baldyga lacked probable

cause to arrest him.

       {¶8} At the conclusion of the suppression hearing, the trial court agreed with

Bautista and determined that Baldyga did not follow the proper procedures when

administering the SFSTs in accordance with the NHTSA, and that he did not have

sufficient probable cause to arrest Bautista.   South Euclid filed a timely appeal.

II.    Law and Analysis

       A.     Sobriety Field Tests

       {¶9} In accordance with R.C. 4511.19(D)(4)(b), an officer may testify “concerning

the results of the field sobriety test” if he substantially complies with the testing

standards. In seeking to suppress the results of a breath analysis or field sobriety test,

the defendant must set forth an adequate basis for the motion.    State v. Shindler, 70 Ohio

St.3d 54, 58, 636 N.E.2d 319 (1994). The motion must state the “legal and factual bases

with sufficient particularity to place the prosecutor and court on notice as to the issues

contested.”   Id.   Once an adequate basis for the motion has been established, the

prosecutor then bears the burden of proof to demonstrate substantial compliance with the

Ohio Department of Health (“ODH”) regulations. Xenia v. Wallace, 37 Ohio St.3d 216,

220, 524 N.E.2d 889 (1988).     If the prosecutor demonstrates substantial compliance, the

burden of proof then shifts to the defendant to overcome the presumption of admissibility

and demonstrate that he was prejudiced by anything less than strict compliance.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71 at ¶ 24; Hunter, 8th Dist.
Cuyahoga No. 91110, 2009-Ohio-1239, at ¶ 23-25.

       {¶10} Baldyga testified at the motion hearing that he performed three SFSTs on

Bautista including, the HGN, the WAT, and the OLS tests.             All of the tests were

videotaped by Sergeant Abel of the South Euclid Police Department and were shown to

the trial court during this hearing.

       i.      Horizontal Gaze Nystagmus Test

       {¶11} According to the NHTSA Standardized Field Sobriety Testing Appendix A

online manual, when testing the HGN, the officer should look for three indicators, “(1) if

the eye cannot follow a moving object smoothly, (2) if jerking is distinct when the eye is

at maximum deviation, and (3) if the angle of onset of jerking is within 45 degrees of

center.”    National Highway Traffic Safety Administration, Standardized Field Sobriety

Testing, http://www.nhtsa.gov/ people/injury/alcohol/SFST/appendix_a.htm (accessed

June 22, 2015). Additionally, the manual also gives officers detailed instructions on

how to test for each of the three indicators.    For the first indicator, the NHTSA DWI

Detection and Standardized Field Sobriety Testing Manual instructs officers to hold a

stimulus 12-15 inches from the nose of the subject slightly above eye level and check that

the size of the pupils is equal and not jerking back and forth. Then the officer should

ask the subject to follow the stimulus from left to right with their eyes only, keeping their

head still. For the second indicator, the officer should instruct the subject to hold each

eye at the maximum deviation for a minimum of four seconds, and check that each eye

can hold without jerking. For the third and final indicator, the officer shall instruct the
subject to move their eyes slowly from the center to a 45-degree angle without significant

jerking.   National Highway Traffic Safety Administration, DWI Detection and

Standardized Field Sobriety Testing Student Manuel, Section I, at X-2 (Aug. Ed. 2006).

       {¶12}   During the hearing, Baldyga testified about the procedures that he used to

determine whether Bautista was under the influence of alcohol.     First he testified about

the steps he took to conduct the HGN test on Bautista.          Several procedures were

incorrectly stated and also incorrectly performed. Baldyga testified that he used his

flashlight as the stimulus and held it 12-15 inches away from Bautista at eye level. He

was supposed to hold the flashlight above the eye.

       {¶13} Baldyga’s administration of the SFSTs was videotaped for the trial court to

observe. The video evidence was not consistent with Baldyga’s testimony. The video

first showed Baldyga flashing a pen light into Bautista’s eyes. He then instructs Bautista

to keep his head still and follow the pen light with his eyes only, not moving his head.

Bautista then shines the flashlight left and right a few times and then up and down.

After which, he concludes the HGN test.    He never asks Bautista to move his eyes from

the center of his nose to maximum deviation. He also does not check if Bautista can

hold his eyes at the maximum deviation for a minimum of four seconds.

       {¶14} Next Baldyga testified that when he administered the HGN on Bautista, he

was looking for three parts:    the horizontal nystagmus, resting nystagmus, and the

vestibular nystagmus.   These are not the three parts stated in the manual.   Baldyga then

testified that after looking for these three parts, he checked the sustained maximum
deviation that takes place “when you no longer see the white in the corner of his eye.”

The attorney for Bautista asked Baldyga several times what he was looking for on the

HGN. Each time Baldyga answered that he was looking for nystagmus, but he could not

define what is nystagmus. Baldyga was unaware of how to determine nystagmus or the

other clues he was supposed to look for. According to the NHTSA, he was supposed to

look for lack of smooth pursuit in each eye.       When asked repeatedly about indicators he

was supposed to look for, he never testified about looking for lack of smooth pursuit.

For the third clue, Baldyga did not testify that he had Bautista move his eyes slowly from

the center to a 45-degree angle.         This was consistent with the video.      In the video,

Baldyga never checked for sustained maximum deviation.             He also testified that he did

not recall when he first saw a nystagmus in Bautista’s eyes. Given Baldyga’s testimony

and the video evidence, the trial court concluded that he did not substantially comply with

the testing standards set forth by the NHTSA.

         ii.      Walk-and-Turn Test

         {¶15} According to the NHTSA manual, “in the Walk-and-Turn test, the subject is

directed to take nine steps, heel-to-toe, along a straight line.     After taking the steps, the

suspect must turn on one foot and return in the same manner in the opposite direction.”

National Highway Traffic Safety Administration, Standardized Field Sobriety Testing,

http://www.nhtsa.gov/ people/injury/alcohol/SFST/appendiz_a.htm (accessed June 22,

2015).         While the suspect is performing the test, the officer or examiner is looking for

eight indicators of impairment.       These indicators are, “if the suspect cannot keep balance
while listening to the instructions, begins before the instructions are finished, stops while

walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to

balance, makes an improper turn, or takes an incorrect number of steps.” Id. In his

testimony, Baldyga stated that there were six clues that he looked for the night Bautista

performed this test.   He named only three.       When asked about this discrepancy, he

testified that there were three clues to look for while the suspect walked down the line,

“and then three clues on the way back.”    When asked for clarification, he stated, “there’s

a total of three on his approach towards his turn and I’m then looking for the same three

on his return.”   Baldyga testified that the three clues he was looking for were “if he

raises his arms, doesn’t touch heel to toe, and if he steps off the line.” He did not

mention the other five indicators, and only two of the three indicators he stated during his

testimony were correct.    The trial court concluded that Baldyga did not substantially

comply with the testing standards outlined by the NHTSA manual.

       iii.   One-Leg Stand Test

       {¶16} Baldyga then asked Bautista to perform the OLS test. According to the

NHTSA manual, there are four indicators of impairment.       These include, “swaying while

balancing, using arms to balance, hopping to maintain balance, and putting the foot

down.” Id. During his testimony, Baldyga acknowledged that there were four indicators

of impairment. However he wrote down and testified that one of the indicators that

Bautista was under the influence of alcohol was that Bautista kept looking at his toe.

When asked if that was an official indicator, Baldyga responded that it was not one of the
NHTSA clues, but his own indicator. According to his testimony, he never told Bautista

that he could not look at his toe or to stop looking at his toe. Baldyga created his own

standards and indicators of impairment that are not in line with the official indicators.

The trial court concluded that Baldyga did not substantially comply with the testing

standards created by the NHTSA.

       B.      Probable Cause to Arrest

       {¶17} South Euclid asserts in its second assignment of error that the trial court

erred in finding that there was no probable cause for the arrest of Bautista.    An officer

may arrest a suspect without a warrant when he has probable cause to believe that the

suspect was operating a motor vehicle under the influence of alcohol.              State v.

Henderson, 51 Ohio St.3d 54, 554 N.E.2d 104 (1990). “Probable cause exists when the

arresting officer has sufficient information from a reasonably trustworthy source to

warrant a prudent person in believing that the suspect has committed or was committing

the offense.” State v. Otte, 74 Ohio St.3d 555, 559, 660 N.E.2d 711 (1996). “Probable

cause ‘has come to mean more than bare suspicion,’ but ‘less than evidence which would

justify condemnation’ or conviction.” United States v. Thomas, 11 F.3d 620, 627 (6th

Dist.1993), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed.

1879 (1949).

       {¶18}       “[E]ach ‘drunken driving’ case is to be decided on its own particular and

peculiar facts.”    (Emphasis omitted.) Mentor v. Giordano, 9 Ohio St.2d 140, 146, 224

N.E.2d 343 (1967).       The court is to examine all the facts and circumstances when
deciding the issue of probable cause to support a warrantless arrest for drunk driving.

State v. Tate, 40 Ohio App.3d 186, 187, 532 N.E.2d 167 (11th Dist.1987).         When an

officer uses the results of SFSTs to serve as evidence of probable cause to arrest, the

officer is responsible for substantially complying with the standardized testing

procedures.     “[E]ven minor deviations from the standardized procedures can bias the test

results.”     Quoting from an NHTSA manual, we stress that “if any one of the

standardized field sobriety test elements is changed, the validity is compromised.” State

v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶ 7, quoting State v.

Homan, 89 Ohio St.3d 421, 425, 732 N.E.2d 952 (2000).

       {¶19} Bautista was arrested for operating a vehicle while under the influence of

alcohol. Baldyga determined from the results of the SFSTs that Bautista had consumed

alcohol beyond the legal limit for operating a vehicle.       However these results were

unreliable because Baldyga did not administer the SFSTs with substantial compliance.

On each of the three tests that Baldyga administered, he was mistaken about what

indicators of impairment he was testing for, changed the indicators of impairment to

include his own, and did not give correct instructions to Bautista. Therefore, SFSTs

cannot be used as evidence of probable cause to arrest.

       {¶20} Nevertheless, when the SFSTs results are considered to be unreliable, “an

officer may now testify concerning the results of a field sobriety test administered in

substantial compliance with the testing standards.” Schmitt at ¶ 82.      Baldyga testified

that Bautista was stopped and pulled over as he was driving his vehicle during a routine
sobriety checkpoint. Bautista was not observed driving erratically, but when Baldyga

approached Bautista’s vehicle, he testified that he smelled a moderate odor of alcohol

coming from Bautista and saw open bottles in the back seat. Baldyga asked Bautista to

step out of his vehicle so he could initiate SFSTs. Baldyga stated Bautista “stumbled as

he exited the vehicle.” This interaction was not on the videotape. From this point until

the end of the SFSTs, Baldyga’s administration of the SFSTs was videotaped for the trial

court to observe.     After watching the video of the SFSTs, the trial court noted that “the

defendant’s conduct and appearance shown on the videotape do not include any loss of

balance or other characteristics common to an impaired individual.”            S. Euclid v.

Bautista, Garfield M.C. No. TRC 1302336 (Dec. 5, 2014).         The trial judge “is therefore

in the best position to resolve factual questions and evaluate the credibility of witnesses.”

 State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100, quoting

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, citing State v.

Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). Even without the videotape,

Baldyga’s testimony did not give credence to the trial court that there was probable cause

to arrest Bautista.

       C.      Conclusion

       {¶21} Baldyga did not substantially comply with the testing standards set forth by

the NHTSA, nor did he have probable cause to arrest Bautista for operating a motor

vehicle while under the influence of alcohol.       Bautista did not display any signs that

he was impaired by alcohol, he complied with the SFSTs incorrectly administered by
Baldyga, and he was not observed driving erratically. His speech was not slurred, he did

not fall to the ground, nor did he sway or stumble. Baldyga’s testimony was inconsistent

with the video evidence, and his testimony contained a number of contradictions and

incorrect procedures.   South Euclid argues that because Bautista admitted that he was in

the United States illegally, Baldyga had probable cause to arrest him. Baldyga did not

arrest Bautista for illegal immigration. Bautista was not charged with being in the

country illegally. This argument is off the mark and has no merit. He was arrested and

charged with operating a motor vehicle under the influence.        It has not been shown,

proven that Bautista was under the influence when he was arrested and charged.

      {¶22} This court is acutely aware of the peril that impaired driving poses to the

community.    We regularly affirm properly prosecuted cases of OVI.      Our function, post

trial, is to review the appealed decision, to ensure that due process was properly applied.

We will not, we do not, we cannot be compliant in the faulty prosecution of a case that

results from improper, prejudicial gathering of evidence.

      {¶23} Therefore the appellant’s assignments of error are overruled.

      {¶24} We affirm the decision of the South Euclid Municipal Court.

      It is, therefore, ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the South

Euclid Municipal Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

__________________________________________
ANITA LASTER MAYS, JUDGE

TIM McCORMACK, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR


994 F.2d 843
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Denver O'DELL, Appellant,v.Coleman MCSPADDEN;  Dennis McSpadden;  Charles Pewitt;  GaryH. Terando;  Larry Cotrell; Paul Montgomery, Appellees.
No. 92-3795EM.
United States Court of Appeals,Eighth Circuit.
Submitted:  May 3, 1993.Filed:  May 7, 1993.

Before FAGG, BEAM, and HANSEN, Circuit Judges.
PER CURIAM.

1
Denver O'Dell, a Missouri inmate, brought this 42 U.S.C. § 1983 action against his defense attorney, four county coroners, and a county commissioner alleging they acted collectively and individually to convict him wrongly.  O'Dell appeals the district court's order dismissing the action.  The district court concluded O'Dell's claims against his attorney and the coroners were barred by collateral estoppel because O'Dell unsuccessfully raised the same claims in a state court motion for postconviction relief.  The district court granted the commissioner summary judgment because O'Dell did not set forth specific facts that show there is sufficient evidence to allow a jury to return a verdict for O'Dell.  Having carefully reviewed the record, we conclude the district court properly disposed of O'Dell's action.   See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (federal court must give state court judgment same preclusive effect as would state court);   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (summary judgment is proper if there is not sufficient evidence for a jury to return a verdict for the nonmoving party).  Accordingly, we affirm.


134 B.R. 131 (1991)
In the Matter of Shirleen G. REITZ, Debtor.
TICOR TITLE INSURANCE COMPANY, a corporation of the State of Delaware, Plaintiff,
v.
Shirleen G. REITZ, Defendant.
Bankruptcy No. 90-846, Adv. No. 91-21.
United States Bankruptcy Court, D. Delaware.
November 12, 1991.
*132 Thomas D. Runnels, Newark, Del., for debtor/defendant.
Joseph M. Bernstein, Wilmington, Del., for plaintiff.

MEMORANDUM OPINION AND ORDER
HELEN S. BALICK, Bankruptcy Judge.
Defendant Shirleen Reitz, a Chapter 7 debtor, has moved under Fed.R.Civ.P. 12(b)(6) made applicable here through Bankruptcy Rule 7012(b) to dismiss the plaintiff's complaint seeking nondischargeability of a $19,121.31 debt. Plaintiff claims that this debt is nondischargeable under 11 U.S.C. § 523(a)(2)(A) and 11 U.S.C. § 523(a)(6). Since the complaint states sufficient facts to sustain causes of action under either of the these provisions, the defendant's motion to dismiss must be denied.
In deciding a 12(b)(6) motion to dismiss, the court must assume all the allegations set forth in the complaint are true. Strum v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987) ("all allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true as viewed in the light most favorable to the non-moving party.") In essence, the 12(b)(6) motion challenges the substantive merits of the complaint so as to test whether it states a legally sufficient claim based on the plain statement of facts alleged. Yet, in appraising the sufficiency of a given claim, the court should not dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In accordance with notice pleading practiced in the federal courts, a pleading averring a claim for relief must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8(a); Bankr.R. 7008(a). However, pleading special matters such as fraud require that they "be stated with particularity." Fed.R.Civ.P. 9(b); Bankr.R. 7009. Since a 12(b)(6) dismissal has a res judicata effect, the plaintiff should ordinarily receive the opportunity to amend if the deficiencies in the complaint can be corrected by amendment. 1 Moore's ManualFederal Practice and Procedure § 11.06[1].
Background
The complaint alleges that the debtor, as an officer of Shirleen's Craft Corner, executed a credit line agreement and accompanying note on January 16, 1987, for $20,000. The note was personally guaranteed by the debtor-defendant and her husband, Thomas J. Reitz, and was secured by a mortgage on their real property located at 10 Ironwood Drive, Newark, Delaware. As of June 30, 1988, the defendant had drawn cash advances under the credit line agreement totalling $19,121.31; interest and penalties on this sum are computed on a daily basis pursuant to the credit line agreement. The defendant and her husband sold and transferred their fee simple interest to Charles and Brenda Ferris on June 30, *133 1988. Nevertheless, the Bank of Delaware provided an erroneous payoff amount when requested by the settlement attorney for the information regarding the mortgage payoff figure. Apparently, the Bank also held a more senior mortgage on the subject real estate and reported only the payoff amount for the senior lien. Consequently, no funds were escrowed to satisfy the $19,121.31 debt under the equity line agreement. As a result, the purchasers did not receive a clear title on the 10 Ironwood Drive property and filed a claim under their title insurance with the plaintiff here, Ticor Title Insurance Company. The plaintiff paid off the outstanding amount owed to the Bank in order to clear title to the property pursuant to the title insurance policy and, in return, the plaintiff was subrogated to the rights of the Bank under the equity line agreement and related documentation. Plaintiff now seeks through its nondischargeability complaint to have the credit line agreement debt declared nondischargeable under section 523(a)(2)(A) and (a)(6) of the Code. Specifically, it contends that the defendant "obtained in excess of $20,000.00 from the proceeds of the sale of 10 Ironwood Drive by false pretenses, false representations, and actual fraud because defendant knew or should have known that she was obligated to repay the Bank of Delaware from the proceeds of the sale . . ."; moreover, Ticor also alleges that "[b]y accepting and retaining the proceeds of sale of 10 Ironwood Drive, knowing that she was not entitled to such proceeds to the extent of her obligations to Bank of Delaware . . . the defendant caused willful and malicious injury". The question is whether these facts alleged state a sufficient claim for relief under 11 U.S.C. § 523(a).
Discussion
In nondischargeability actions under Section 523(a) of the Code, the plaintiff-creditor must prove the elements by a preponderance of the evidence. Grogan v. Garner, ___ U.S. ____, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The alleged facts in the complaint contend that the defendant-debtor obtained the Bank's lien proceeds from the property sale by false pretenses or actual fraud. Under the fraud nondischargeability provision of 11 U.S.C. § 523(a)(2)(A), these allegations, if proved, would not permit discharge of this debt. Fraud may consist of silence, concealment, or non-disclosure of a material fact. See In re Haining, 119 B.R. 460, 463 (Bankr. D.Del.1990). In addition, a "false pretense" involves an implied misrepresentation or certain conduct which creates and fosters a false impression. Id. at 463-64. See also Nicolet, Inc. v. Nutt, Del.Supr., 525 A.2d 146 (1987); Lock v. Schreppler, Del.Super., 426 A.2d 856 (1981) (duty to speak arises in certain situations). In a real estate settlement, a party to the transaction certainly has a duty to speak or disclose information relevant to other interested parties to the transaction. Nevertheless, the plaintiff must come forward with some affirmative evidence to demonstrate scienter, i.e., an intent to deceive and cannot rely solely on the circumstances surrounding the transaction. Haining, 119 B.R. at 463. Therefore, the complaint sets forth enough facts to withstand a 12(b)(6) motion to dismiss on the fraud allegations.
As to the willful and malicious injury claim under 11 U.S.C. § 523(a)(6), the facts alleged in the plaintiff's complaint are also sufficient to preclude dismissal under Rule 12(b)(6). The factual circumstances are identical to those discussed earlier. Still, unlike fraud which must be plead with particularity, malice, intent, and knowledge may be averred generally. Fed.R.Civ.P. 9(b); Bankr.R. 7009. However, though the Federal Rules of Civil Procedure assist the pleader in sustaining a cause of action based on these elements, it does not permit the court to "infer" these conditions of mind at trial. Plaintiff must prove willful and malicious injury by a preponderance of evidence in order to succeed on its nondischargeability claim under § 523(a)(6) of the Code. See In re Braen, 900 F.2d 621, 624-26 (3d Cir.1990).