Colo. Rail Passenger Ass'n v. Fed. Transit Admin.

• Decision Date: 30 December 2011
• Docket Number: Civil Case No. 09–cv–01135–WJM–KMT.,Civil Action No. 10–cv–00462.
• Citation: 843 F.Supp.2d 1150
• Parties: COLORADO RAIL PASSENGER ASSOCIATION, Plaintiff, v. FEDERAL TRANSIT ADMINISTRATION, Defendant.
• Court: U.S. District Court — District of Colorado

843 F.Supp.2d 1150

COLORADO RAIL PASSENGER ASSOCIATION, Plaintiff,

v.FEDERAL TRANSIT ADMINISTRATION, Defendant.

Civil Case No. 09–cv–01135–WJM–KMT.

Civil Action No. 10–cv–00462.

United States District Court,

D. Colorado.

Dec. 30, 2011.

Philipp C. Theune, Theune Law Offices, PC, Denver, CO, for Plaintiff.

Jamie L. Mendelson, U.S. Attorney's Office, Denver, CO, for Defendant.

ORDER AFFIRMING RECORD OF DECISION

WILLIAM J. MARTÍNEZ, District Judge.

Plaintiff Colorado Rail Passenger Association brings this complaint seeking judicial review of Defendant Federal Transit Administration's October 17, 2008 ¹ final Record of Decision approving the plans to redevelop the transit options at Denver Union Station. Plaintiff alleges that the process underlying the Record of Decision did not comport with the National Environmental Policy Act.

This case is before the Court on the merits. For the reasons set forth below, the Court AFFIRMS the Record of Decision.

I. STANDARD OF REVIEW

Plaintiff brings this action under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706, which subjects federal agency action to judicial review. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1573 (10th Cir.1994). Under the APA, the Court may “hold unlawful and set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... [or] in excess of statutory jurisdiction, authority, or limitations....” 5 U.S.C. § 706(2).

Under the APA, the Court does not review an agency action de novo, but rather sits as an appellate body. Center for Native Ecosystems v. Salazar, 711 F.Supp.2d 1267, 1272 (D.Colo.2010) (citing Olenhouse, 42 F.3d at 1580). An agency action is afforded the presumption of validity; “the burden is on the petitioner to demonstrate that the action is arbitrary and capricious.” Copar Pumice Co., Inc. v. Tidwell, 603 F.3d 780, 793 (10th Cir.2010). “Agency action is arbitrary and capricious if the agency ‘has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,’ or if the agency action ‘is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Id.

In determining whether an agency action is arbitrary and capricious, the Court must consider “the full administrative record that was before all decision makers.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.1993) (citations omitted).

II. FACTUAL BACKGROUND

This case is about the process underlying redevelopment of Denver Union Station (“DUS”). The process of redeveloping DUS began in 2001 and, for purposes of this action, culminated when the Federal Transit Administration (“FTA” or “Defendant”) issued its Record of Decision (“ROD”) on October 17, 2008. (AR 7985–8718.) The Administrative Record in this case contains over 27,000 pages of documents. The following recitation of facts is a brief summary of that seven year process, focusing on the parts of the process that are germane to this action.

In 2001, the Regional Transportation District (“RTD”) purchased 19.85 acres of land which includes the DUS building and railway lines on the property. (AR 36.) RTD sought to develop DUS as the multi-modal transportation hub of its larger FasTracks program. (AR 8055–8056.) RTD entered into an Intragovern mental Agreement with the City and County of Denver, Colorado Department of Public Transportation, and the Denver Regional Council of Governments (collectively “Partners”) to fund the development of a master plan, a preliminary engineering statement, and any environmental statements necessary. (AR 23847.)

In June 2002, FTA notified RTD that federal funding of the DUS project would require the preparation of an environmental impact statement (“EIS”) to comply with the National Environmental Policy Act (“NEPA”). (AR 236.) To begin this process, FTA published a Notice of Intent to conduct an EIS in the Federal Register on June 4, 2002. 67 Fed.Reg. 38,544 (June 4, 2004) (AR 234–35.)

On June 20, 2002, the Partners held both an agency scoping meeting and a public scoping meeting. Key local, state, and federal agencies were invited to the agency scoping meeting; thirteen attended. (AR 8314.) The public scoping meeting was advertised in newspapers of general circulation, posted on the DUS website (www. denverunion station. org), and sent via e-mail to persons on the project mailing list. (AR 690, 8314.) Over 200 people attended the public scoping meeting. (AR 8314.)

At each of these meetings, members from the project team presented an overview of the proposed Master Plan for DUS, explained the EIS process and its projected schedule, and outlined the draft vision and goals for the project. (AR 8314.) This presentation was followed by a question and answer period and a time for public comment. (AR 8314.) Handout materials describing the project were distributed, as well as forms for providing written comments. (AR 8314.)

Also at this initial scoping meeting, the Union Station Advisory Committee (“USAC”) was formed. (AR 8315, 10555.) All members of the public at the meeting were invited to participate. As originally composed, USAC had ninety-six members representing thirty-six stakeholder categories. (AR 9574.) The USAC first worked together to compose the vision statement and goals for DUS. (AR 20068, 20093.) The Vision Statement, which remained unchanged throughout the seven year process, follows:

DUS will be a multimodal transportation center of international significance and a prominent and distinctive gateway to downtown Denver and the region. The Station will bring critical elements of the public and private local, regional, statewide, and national transportation systems, both existing and future, together with private development and inspiring civic features. DUS will create an exciting setting that will improve the connections between all transportation modes, respect the character and historical significance of the Station and its adjacent neighborhoods, and provide a stimulating environment for public activity and economic vitality.

(AR 9290.) USAC met more than twenty times between June 2002 and October 2004, when the initial master plan and zoning was approved by Denver City Council. (AR 9574.) All USAC meetings were open to the public and were advertisedon the project website: www. denverunion station. org. (AR 691, 17766.) Some USAC meetings were also advertised in newspapers of general circulation and through direct e-mails to persons on project mailing lists. (AR 23166.)

Members of the USAC also formed break-out groups according to interests such as rail, traffic, bus, environment, zoning, historic preservation, and land-use issues. (AR 691, 8319–22.) The break-out groups met separately to discuss the issues relevant to them. The break-out groups would then make recommendations to the USAC at various points during the project development process. ( Id.)

A Technical Advisory Committee (“TAC”) was also formed consisting of representatives of the Partners as well as representatives from transit agencies and companies ( e.g., Amtrak, BNSF, Greyhound), environmental agencies ( e.g., EPA, Air Quality Council), and other governmental agencies ( e.g., Colorado Historical Society, Denver Housing Authority). (AR 8375–8379.) The TAC provided technical guidance and direction to the process of developing alternative design plans and screening those alternatives. (AR 20002–20006.)

A second town hall meeting was held on September 12, 2002. (AR 8316.) This meeting was again advertised widely and open to the public. The Partners introduced the project's proposed purpose and need statement as well as fourteen alternative designs that had been developed by the project team. (AR 8316.) The purpose of the DUS project, as stated in the Final EIS is as follows:

The purpose of the proposed project is to enhance the function of DUS as a multimodal transportation center for the Metro Denver Region and the entire State of Colorado. Improving DUS will bring together the various modes of transportation into one place and provide efficient and convenient access to and from downtown Denver. The proposed transportation improvements would help relieve traffic congestion, improve air quality, and provide additional mode options for the traveling public.

With an expanded multimodal center, an opportunity exists to provide effective connections between the various transportation modes and services planned to serve DUS. These modal and service connections are expected to improve regional mobility and provide greater access to employment, community services, and other regional destinations.

It is also anticipated that improved transit connections to the region will increase transit use due to the variety of services offered, the multiple destinations served, the ease of transfers, and the improved passenger convenience. Without such an expanded multimodal center, current and planned transportation services would be limited in service effectiveness and passenger convenience. DUS would not be able to accommodate the level of transit service needed for the growing region and passengers would be forded to use multiple transfer facilities to make connections. Traffic flow on major downtown streets would be affected, due to bus and rail services having to terminate at multiple downtown locations instead of converging at a central location to distribute passengers. Project transit ridership would likely be lower under a decentralized system, due to reduced passenger convenience and less ease of transfer to reach destinations outside of downtown. The opportunity exists to re-establish DUS's historic prominence as a full-service transportation hub and reinforce it as a distinctive gateway to downtown Denver, the Metro Denver...