302 F.3d 1104 (10th Cir. 2002), 01-4129, Davis v. Mineta

Docket Nº:01-4129
Citation:302 F.3d 1104
Party Name:Davis v. Mineta
Case Date:June 20, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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302 F.3d 1104 (10th Cir. 2002)

NICOLE DAVIS; Brad Davis; Kent Player; Matt Arnett; Rick Taylor; Jan Sharp; Dennis Dailey, Plaintiffs-Appellants,


Norman Y. MINETA, Secretary, Department of Transportation; Mary E. Peters, Administrator, Federal Highway Administration; David Gibbs, Division Administrator, Federal Highway Administration, Utah Division; Thomas R. Warne, Executive Director, Utah Department of Transportation, Defendants-Appellees.

No. 01-4129

United States Court of Appeals, Tenth Circuit

June 20, 2002

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Jeffrey W. Appel (James L. Warlaumont and Jennifer L. Crane with him on the brief), Salt Lake City, Utah, for Plaintiffs-Appellants.

Jeffrey C Dobbins, Attorney, U.S. Department of Justice Environment & Natural Resources Division, Washington, D.C. (Clay Samford and Andrew Mergen, Attorneys, U.S. Department of Justice Environment & Natural Resources Division, Washington, D.C. and Helen Mountford, Federal Highway Administration, Office of the Chief Counsel, San Francisco, California, of Counsel, with him on the brief), for Defendants-Appellees Norman Y. Mineta, Secretary, Department of Transportation; Mary E. Peters, Administrator, Federal Highway Administration; and David Gibbs, Division Administrator, Federal Highway Administration, Utah Division.

Thomas A. Mitchell, Assistant Attorney General, Steven F. Alder, Assistant Attorney General, Mark L. Shurtleff, Attorney General, Salt Lake City, Utah, for Defendant-Appellee Thomas R. Warne.

Before SEYMOUR, EBEL, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Plaintiffs seek to enjoin defendants from proceeding with the construction of a highway project (the "Project") located within the cities of Draper, Sandy and South Jordan in Salt Lake County, Utah. Plaintiffs argue that defendants violated the National Environmental Protection Act (NEPA), 42 U.S.C § 4332(C) and § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c) when they prepared an inadequate Environmental Assessment ("EA") and then proceeded to issue a Finding of No Significant Impact ("FONSI") rather than an Environmental Impact Statement ("EIS"). The Project under review includes several components: the creation of a new freeway interchange at Interstate 15 and 11400 South; the construction of a new bridge over the Jordan River at 11400 South; and the widening and extension of existing 11400 South.1 The proposed expansion and widening of 11400 South will

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create a new segment of five-lane highway where no road currently exists. A portion of the expanded 11400 South will affect publicly-owned parkland and will require the displacement or demolition of several historic structures.

As currently envisioned, the Project will proceed in two phases. Phase I includes the construction of the 11400 South interchange at 1-15 and 1-15 improvements. Phase II involves the expansion and extension of 11400 South, including the construction of a new bridge across the Jordan River. While completion of Phase I appears to involve a time horizon of approximately three to four years, there is no definitive timetable established for the completion of Phase II.

The proponents of the Project are the Utah Department of Transportation ("UDOT"), and Draper, Sandy and South Jordan. Due to its potential effects on the environment, parkland and historic structures, the Project implicates both the NEPA, and § 4(f). The Federal Highway Administration ("FHWA") was the federal agency responsible for approving the Project and for preparing the environmental analysis required by NEPA. However, the EA here was initially prepared by Horrocks Engineers under contract with Sandy City and then reviewed and adopted by the FHWA. The Secretary of Transportation was responsible for approving the Project based on the § 4(f) analysis.2

Here the FHWA's combined EA and § 4(f) analysis (EA/4(f)) led to a FONSI. Thus, the FHWA concluded that no EIS was required.

We have identified the following deficiencies with defendants' methodology and conclusions in this case:

1. The EA/4(f)'s consideration of alternatives to the Project is inadequate. Serious consideration was given only to the preferred alternative (i.e., the Project as proposed) and a no-build alternative.

2. The EA/4(f) fails to consider adequately the Project's impacts including cumulative impacts.

3. The EA/4(f) fails to address adequately issues relating to phasing of the Project, particularly given the many-year time frame between the beginning and prospective completion dates for the Project.

4. The § 4(f) analysis failed to satisfy the high burden imposed on projects that make use of a public park and/or historic sites.

5. The EA/4(f) is fatally flawed by its use of vague, unsupported conclusions and inadequate, incomplete analysis.

I. Standard of review

This court reviews a district court's grant or denial of a preliminary

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injunction for an abuse of discretion. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234,1243 (10th Cir. 2001); Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). A district court abuses its discretion where it commits a legal error or relies on clearly erroneous factual findings, Prairie Band, 253 F.3d at 1242, or where there is no rational basis in the evidence for its ruling. Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061, 1065 (10th Cir. 2001). We examine the district court's underlying factual findings for clear error, and its legal determinations de novo. Water Keeper Alliance v. United States Dep't of Def., 271 F.3d 21, 30 (1st Cir. 2001); see also United States v. Power Eng'g Co., 191 F.3d 1224, 1230 (10th Cir. 1999).

In order to receive a preliminary injunction, the plaintiff must establish the following factors: "(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) [that] the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) [that] the injunction, if issued, will not adversely affect the public interest." Fed. Lands Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999). If the plaintiff can establish that the latter three requirements tip strongly in his favor, the test is modified, and the plaintiff may meet the requirement for showing success on the merits by showing "that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation." Id. at 1195.

Our analysis of likelihood of success on the merits necessarily implicates defendants' compliance with NEPA and § 4(f). At this point, a second layer of review comes into play, because defendants' agency actions are themselves examined under a highly deferential, "arbitrary and capricious" standard. This standard is rooted in the very nature of administrative review.

Judicial review of agency NEPA and § 4(f) decisions is made available through the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. See All Indian Pueblo Council v. United States, 975 F.2d 1437, 1443 (10th Cir. 1992) (NEPA); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (§ 4(f)). The APA sets forth a number of standards to be employed by courts reviewing administrative action. See 5 U.S.C. § 706(2). It has long been settled that an agency's decision to issue a FONSI is reviewed under the APA's deferential "arbitrary and capricious" standard. Id. § 706(2)(A); see, e.g., Utah Shared Access Alliance v. United States Forest Serv., 288 F.3d 1205, 1213 (10th Cir. 2002); Comm. to Preserve Boomer Lake v. Dep't of Transp., 4 F.3d 1543, 1555 (10th Cir. 1993). Although our standard of review of the § 4(f) analysis is somewhat more complex in this case, it generally implicates the arbitrary and capricious standard as well. Overton Park, 401 U.S. at 416, 91 S.Ct. 814.

Under NEPA regulations, an agency undertaking an action is required to determine whether its proposal is one that normally requires or normally does not require an EIS. 40 C.F.R. § 1501.4(a). If the answer to this question is not clear-cut, the agency should prepare an EA. Id. § 1501.4(b).3 If the agency determines,

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based on the EA, that no EIS is needed because its action would not significantly affect the environment, it may then prepare a FONSI. Id. §§ 1501.4(e), 1508.13. Otherwise, it must prepare an EIS.

When we review an EA/FONSI to determine whether an EIS should have been prepared, we must determine whether the agency acted arbitrarily and capriciously in concluding that the proposed action "will not have a significant effect on the human environment." Thus, our review of an EA/FONSI has a substantive component as well as a component of determining whether the agency followed procedural prerequisites. If the plaintiffs can demonstrate substantively that the FHWA's conclusion of non-significant effect on the environment represents a "clear error of judgment," then that conclusion must be reversed. Utah Shared Access Alliance, 288 F.3d at 1213.

As will be seen, here plaintiffs have demonstrated both procedural deficiencies in the EA as well as demonstrating that the Project will have a significant impact on the environment. Defendants propose to construct a five-lane highway through a park where no road currently exists. This five-lane highway will bisect the park, require the construction of a new" bridge across the Jordan River, require the demolition or...

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