Defenders of Wildlife & Nat'l Wildlife Refuge Ass'n v. N.C. Dep't of Transp.

Citation971 F.Supp.2d 510
Decision Date16 September 2013
Docket NumberNo. 2:11–CV–35–FL.,2:11–CV–35–FL.
PartiesDEFENDERS OF WILDLIFE and National Wildlife Refuge Association, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; Federal Highway Administration; John F. Sullivan, III, Division Administrator, Federal Highway Administration; and Eugene A. Conti, Jr., Secretary, North Carolina Department of Transportation, Defendants, and Cape Hatteras Electric Membership Corporation, Intervenor–Defendant.
CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina

OPINION TEXT STARTS HERE

Derb S. Carter, Jr., Nicholas S. Torrey, Julia F. Youngman, Southern Environmental Law Center, Chapel Hill, NC, Jason C. Rylander, Defenders of Wildlife, Robert M. Morgan, National Wildlife Refuge Association, Washington, DC, for Plaintiffs.

Thomas Daniel Henry, II, Colin Alan Justice, Tammy Alice Bouchelle, North Carolina Department of Justice, Scott T. Slusser, N.C. Attorney General's Office, Matthew Lee Fesak, U.S. Attorney's Office, Raleigh, NC, Beverly F. Li, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on motion of Defenders of Wildlife and National Wildlife Refuge Association (collectively plaintiffs) for summary judgment (DE 74). Defendants North Carolina Department of Transportation (NCDOT) and Eugene A. Conti, Jr. (“state defendants) responded and filed cross-motion for summary judgment (DE 79). Defendants Federal Highway Administration (FHWA) and John F. Sullivan, III (“federal defendants) also filed response and cross-motion for summary judgment (DE 81). The issues raised are ripe for adjudication. For the following reasons, plaintiff's motion is denied and defendants' cross-motions are granted.

STATEMENT OF THE CASE

Plaintiffs filed suit pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, raising claims against defendants for alleged violations of the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321–47, and Section 4(f) of the Department of Transportation Act of 1966 (Section 4(f)).1 Plaintiffs primarily allege that defendants failed to follow proper procedure in researching, designing, and choosing a replacement for the Herbert C. Bonner Bridge (“Bonner Bridge”), which spans the Oregon Inlet of North Carolina's Outer Banks.

The parties proposed a case schedule to consist first of the federal defendants' lodging of the administrative record, followed by the parties' cross-motions for summary judgment. The court adopted this plan by order entered November 1, 2011, and amended it on February 9, 2012, after allowing Cape Hatteras Electric Membership Corporation to intervene as a defendant.

On July 20, 2012, plaintiffs moved for summary judgment on the basis that defendants violated NEPA by: (1) impermissibly segmenting the action at issue; (2) failing to disclose and fully evaluate the direct, indirect, and cumulative impacts of the selected alternative; (3) failing to adequately analyze alternatives; and (4) failing to prepare a supplemental environmental impact statement (“SEIS”). Plaintiffs also moved for summary judgment pursuant to Section 4(f), claiming that defendants' selected alternative is prohibited because it uses a refuge. Defendants responded in opposition and filed cross-motions for summary judgment on September 5, 2012, arguing that the selectedalternative meets the requirements of NEPA and Section 4(f).

STATEMENT OF UNDISPUTED FACTS
A. Bonner Bridge and Pea Island National Wildlife Refuge 2

The project at issue, entitled “NC 12 Replacement of Herbert C. Bonner Bridge (sometimes referred to as the “Project”), was developed by NCDOT, in collaboration with FHWA to secure federal funding. R. 58273–59058 (containing the 2008 Final Environmental Impact Statement (“FEIS”)/Section 4(f) Evaluation for the Project). Bonner Bridge, which is part of North Carolina Highway 12 (“NC 12”), connects Bodie and Hatteras Islands in the Outer Banks by spanning 2.5 miles across Oregon Inlet. R. 58275, 58330–31. Bonner Bridge, owned by NCDOT, was built in 1962 and is approaching the end of its reasonable service life.3 R. 91956. In 2002, Bonner Bridge carried about 5,400 vehicles per day, with peak tourist season traffic up to 10,900 vehicles per day. R. 58328–29. Ferries also provide emergency transportation between the islands, and were the sole means of transport before Bonner Bridge was constructed. R. 58369–70.

The southern end of Bonner Bridge lies in Pea Island National Wildlife Refuge (“Refuge”), which spans from the northern tip of Hatteras Island to the village of Rodanthe. R. 58499–501. The Refuge is almost twelve (12) miles long, but only 0.25 to 1 mile in width. R. 58538. The Refuge was established in 1938 by Executive Order of President Theodore Roosevelt in recognition of the importance of the area for wildlife preservation. R. 58537.4 The Refuge is home to hundreds of species of migratory birds and other wildlife, including the piping plover (a shorebird designated as threatened under the Endangered Species Act) and several threatened and endangered species of sea turtles that use the Refuge for nesting. R. 58599–601, 58730–40.

The Executive Order establishing the Refuge reserved the lands for the Refuge “subject to valid existing rights”—a restriction consistent with language in the Migratory Bird Conservation Act of 1929 (from which the Refuge was funded) specifically allowing pre-existing rights-of-way to remain when a property is acquired if the right-of-way is not incompatible with the Refuge function. 16 U.S.C. § 715(e). Later in 1938, the United States acquired the land for the Refuge through condemnation actions. R. 77–86. These acquisitions did not include existing public highways and public utility easements across the island. R. 78. At that time, the North Carolina State Highway and Public Works Commission, in cooperation with FHWA's predecessor agency, published a map of Dare County depicting both the Refuge and an “unimproved road” extending from Oregon Inlet, across the length of the Refuge to Rodanthe and points further south. R. 78363.

In 1954, the United States Department of Interior (“DOI”) granted an easement for a 100–foot–wide right-of-way for the state of North Carolina to maintain a road, where NC 12 was built. R. 1108–10, 68660. NC 12 bisects the entire Refuge as it connects Bodie Island to Rodanthe. The Refuge is located on an unstable portion of Hatteras Island due to shoreline erosion. R. 58329. The result of the natural forces working on the Refuge, along with efforts to shore up the road, is a continual narrowing of the island and its beaches over time. The same forces also are causing Oregon Inlet to move. Since a storm created the inlet in 1846, the southern end of Bodie Island has moved over two miles southward (at an average of seventy (70) feet per year), as the southern end of Bodie Island accretes and the northern end of Hatteras Island erodes. R. 58329.

In 1991, scientists retained by NCDOT identified three “critical sections or “hot spots” within the Refuge. R. 58326, 58329. These are the areas with the highest erosion rates (ranging from eight to fifteen (15) feet per year) and where the creation of new inlets is most likely to occur. R. 58329.

Because of Hatteras Island's erosion and westward movement, NCDOT has, over time, relocated NC 12 to the western-most edge of its right-of-way in many places within the Refuge, and occasionally outside the right-of-way. Each relocation required a special use permit from DOI. R. 75635–43, 77086–90. Travel on NC 12 frequently is disrupted, as storms and high tides make it impassable for anywhere from a few hours to a few weeks, usually at the hot spots identified by NCDOT. R. 36922–26 (listing seventeen (17) significant storm events in the area between 1991 and 2005); R. 59874–79, R. 77259–81, 77284 (correspondence and photos of storm damage to NC 12).

B. Preparation for Bonner Bridge Replacement

Planning began for a replacement in 1990 after severe deterioration of the steel and concrete supporting structures became apparent and a ship collision demolished several spans. R. 7603–25, 8568–69. Environmental studies for NEPA and other federal environmental laws were undertaken because NCDOT intended to construct the replacement bridge using Federal grant-in-aid funds administered by FHWA. See R. 9142–44.

In evaluating the Project under NEPA and Section 404 of the Clean Water Act, FHWA's North Carolina Division Office and NCDOT engaged in an interagency project development and permitting process referred to as the “Merger Team” with the United States Army Corps of Engineers (“USACE”), United States Environmental Protection Agency (“EPA”), United States Fish and Wildlife Service (“USFWS”), National Marine Fisheries Service (“NMFS”), National Park Service (“NPS”), North Carolina Division of Environment and Natural Resources (“NCDENR”), and the North Carolina Department of Cultural Resources, State Historic Preservation Office (SHPO). R. 58878. The Merger Team meetings provided opportunities for agency participants to concur formally with key decisions in the NEPA process, such as the Project's purpose and need, the alternatives to be analyzed in detail, the Least Environmentally Damaging Practicable Alternative (“LEDPA”), and avoidance and minimization of harms. R. 58879, 83419. In the event that the Merger Team could not agree on a particular issue, the Merger Process included a dispute resolution procedure to resolve conflicts. R 83419. The Merger Process was agreed to by USACE, NCDENR, FHWA, and NCDOT, and supported by other partnering agencies and local units of government. R. 83419.

As noted above, the Project area is complex and the shoreline constantly is changing. R. 83436, 91956. Over a 19–year study period, FHWA and NCDOT jointly prepared 3,163 pages of environmental documentation, including: (1) a 1993 Draft Environmental Impact...

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