305 F.3d 1152 (10th Cir. 2002), 01-4216, Utahns For Better Transp. v. US Dept. of Transp.

Docket Nº:01-4216.
Citation:305 F.3d 1152
Party Name:UTAHNS FOR BETTER TRANSPORTATION; Ross C.
Case Date:September 16, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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305 F.3d 1152 (10th Cir. 2002)

UTAHNS FOR BETTER TRANSPORTATION; Ross C. "Rocky" Anderson, in his official capacity as Mayor of Salt Lake City, Utah; Paul C. Hunter; Rosemarie M. Hunter, Plaintiffs,

and

Sierra Club, Plaintiff-Appellant,

UNITED STATES DEPARTMENT OF TRANSPORTATION; Norman Mineta, Secretary, United States Department of Transportation; Federal Highway Administration; Mary E. Peters, Administrator, Federal Highway Administration; David Gibbs, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. Army Corps of Engineers; Michael J. Conrad, Colonel, District Engineer of the Sacramento District; Brooks Carter, Chief of the Intermountain Regulatory Section; Federal Transit Administration; Jennifer L. Dorn, Administrator of the Federal Transit Administration; Lee Waddleton, Regional Administrator of the Federal Transit Administration and his successor, Defendants-Appellees.

State of Utah; Utah Department of Transportation, Intervenors.

Utahns For Better Transportation, Plaintiff-Appellant,

and

Ross C. "Rocky" Anderson, in his official capacity as Mayor of Salt Lake City, Utah; Sierra Club; Paul C. Hunter; Rosemarie M. Hunter, Plaintiffs,

v.

United States Department of Transportation; Federal Highway Administration; Mary E. Peters, Administrator, Federal Highway Administration;

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David Gibbs, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. Army Corps of Engineers; Michael J. Conrad, Colonel, District Engineer of the Sacramento District; Brooks Carter, Chief of the Intermountain Regulatory Section; Norman Mineta, Secretary of the United States Department of Transportation; Federal Transit Administration; Jennifer L. Dorn, Administrator of the Federal Transit Administration; Lee Waddleton, Regional Administrator of the Federal Transit Administration and his successor, Defendants-Appellees.

State of Utah; Utah Department of Transportation, Intervenor

Utahns for Better Transportation; Sierra Club; Paul C. Hunter; Rose-marie M. Hunter, Plaintiffs,

and

Ross C. "Rocky" Anderson, in his official capacity as Mayor of Salt Lake City, Utah, Plaintiff-Appellant,

v.

United States Department of Transportation; Norman Mineta, Secretary, United States Department of Transportation; Federal Highway Administration; Mary E. Peters, Administrator, Federal Highway Administration; David Gibbs, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. Army Corps Of Engineers; Michael J. Conrad, Colonel, District Engineer of the Sacramento District; Brooks Carter, Chief of the Intermountain Regulatory Section; Federal Transit Administration; Jennifer L. Dorn, Administrator of the Federal Transit Administration; Lee Waddleton, Regional Administrator of the Federal Transit Administration and his successor, Defendants-Appellees,

State of Utah; Utah Department of Transportation, Intervenors.

No. 01-4216.

United States Court of Appeals, Tenth Circuit

September 16, 2002

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Craig D. Galli (Michael J. Malmquist, and H. Douglas Owens of Parsons Behle & Latimer, Salt Lake City, UT, and Robert W. Adler, Professor of Law, University of Utah College of Law, for Plaintiff-Appellant Utahns for Better Transportation; Steven W. Dougherty of Anderson & Karrenberg, Salt Lake City, UT, for Plaintiff-Appellant Ross C. "Rocky" Anderson; Patrick Gallagher, San Francisco, CA, and Joro Walker of Land and Water Fund of the Rockies, Salt Lake City, UT, for Plaintiff-Appellant Sierra Club, with him on the briefs).

Margaret N. Strand of Venable, Baetjer, Howard & Civiletti, LLP, Washington, DC, for Appellee State of Utah; and Sandra Slack Glover, Attorney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for the Federal Appellees (Mark L. Shurtleff, Attorney General, and Thomas A. Mitchell, Assistant Attorney General, State of Utah, for Appellee State of Utah; Thomas L. Sansonetti, Assistant Attorney General; Paul M. Warner, United States Attorney; Carlie Christensen, Assistant United States Attorney; Daniel Pinkston and Clay Samford, Attorneys, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC; Helen Mountford, Office of the Chief Counsel, Federal Highway Administration; and Lisa Clay, Assistant District Counsel, U.S. Army Corps of Engineers, for the Federal Appellees, with them on the brief).

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ, Circuit Judge.

Page 1161 PAUL KELLY, Jr., Circuit Judge.

This appeal arises from the district court's order denying the Appellants' request that the Records of Decision issued by the Federal Highway Administration and the U.S. Army Corps of Engineers (collectively the "Agencies") concerning the Legacy Parkway project be vacated and that the Legacy Parkway Final Environmental Impact Statement be remanded for further agency action. The district court's jurisdiction was based upon the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-06. We have jurisdiction pursuant to 28 U.S.C. § 1291, and review the district court's decision de novo. New Mexico Cattle Growers Ass'n v. United . States Fish & Wildlife Sem, 248 F.3d 1277, 1281 (10th Cir. 2001). We affirm in part, reverse in part, and remand.

Background

The Great Salt Lake ("GSL") and the wetlands surrounding its shoreline serve as an important habitat for a variety of birds, reptiles, amphibians, and mammals, some of which are endangered. The wetlands of the GSL account for 75 percent of all wetlands in the State of Utah, whose total land area consists of only 1.5 percent wetlands. The shores of the GSL are internationally important because they are a link of the Pacific Flyway for migratory waterfowl and a link of the Western Hemisphere Shorebird Reserve Network ("WHSRN"). Some two to five million birds use the GSL yearly and 90 percent of that use is concentrated in the eastern shore. II Aplt.App. at 639.

By the year 2020, population and travel demand in the five counties along the eastern shore of the GSL is anticipated to increase by 60 percent and 69 percent, respectively. To prepare the transportation infrastructure to meet this future demand, Utah's state, local, and regional officials have developed a three-part plan collectively called "Shared Solution." The plan calls for improving and expanding Interstate 15, expanding transit, and constructing the Legacy Parkway. The Legacy Parkway is to be a four-lane, divided, limited access, state-funded highway. As currently proposed, it is to be 330 feet wide consisting of four lanes, a 65.6-foot median, a 59-foot berm and utility corridor, and a 13.1-foot pedestrian/equestrian/bike trail. It is to start near Salt Lake City ("SLC"), run north along the eastern portion of the GSL, and end fourteen miles later by connecting with U.S. 89. See II Aplee. App. 710(map).

Because the Legacy Parkway will connect to the interstate highway system and will require filling in 114 acres of wetland, it must receive approval from the Federal Highway Administration ("FHWA") 1 and a § 404(b) permit from the U.S. Army Corps of Engineers ("COE"). Because both the approval and the permit qualify as major federal actions, an Environmental Impact Statement ("EIS") is required. The Utah Department of Transportation ("UDOT") and its private contractors began preparing a Draft Environmental Impact Statement ("DEIS") shortly after plans for a new highway were announced by Utah's governor in July 1996. The FHWA and the COE adopted UDOT's DEIS and issued it for public comment in

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September 1998. The Final Environmental Impact Statement ("FEIS") was released for public comment in June 2000. In December 2000, UDOT awarded the contract for construction of the Legacy Parkway. On January 9, 2001, the COE released its Record of Decision ("ROD") issuing the § 404(b) permit to UDOT; and, on October 31, 2000, the FHWA issued its ROD approving UDOT's request for additions and modifications of access points to the interstate highway system.

The Appellants, whose complaints were consolidated by the district court, filed an appeal pursuant to the APA from the RODs as final agency actions. The Appellants asked the district court to vacate the FHWA's and COE's RODs that approved construction of the Legacy Parkway, and to order the preparation of a new EIS for the Legacy Parkway. The district court denied the Appellants' request. After the district court decision was certified as an appealable order, the Appellants appealed to this court and sought an Emergency Motion for Injunction Pending Appeal. On a preliminary record, we granted the motion requiring a $50,000.00 bond.

On appeal, Appellants contend that the COE violated the CWA in issuing a permit for the Legacy Parkway where less environmentally damaging "practicable alternatives" existed to the configuration and alignment of the highway. They contend that both the CWA and NEPA were violated when various project impacts were not evaluated correctly and other NEPA requirements were ignored. The Appellants summarize their argument as urging the court to order the Agencies to prepare a new or supplemental EIS and to process a new CWA permit application that adequately addresses the following factors: (1) mass transit alternatives, (2) alternative land use scenarios, (3) land use and growth impacts, (4) impacts on Salt Lake City, (5) wetlands and wildlife impacts, and (6) air quality impacts. Aplt...

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