Defenders of Wildlife v. N.C. Dep't of Transp.

• Decision Date: 06 August 2014
• Docket Number: No. 13–2215.,13–2215.
• Citation: Defenders of Wildlife v. N.C. Dep't of Transp., 762 F.3d 374 (4th Cir. 2014)
• Parties: DEFENDERS OF WILDLIFE; National Wildlife Refuge Association, Plaintiffs–Appellants, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; Anthony J. Tata, Secretary, North Carolina Department of Transportation; Federal Highway Administration; John F. Sullivan, III, Defendants–Appellees, and Cape Hatteras Electric Membership Corporation, Intervenor/Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

762 F.3d 374

DEFENDERS OF WILDLIFE; National Wildlife Refuge Association, Plaintiffs–Appellants,

v.NORTH CAROLINA DEPARTMENT OF TRANSPORTATION; Anthony J. Tata, Secretary, North Carolina Department of Transportation; Federal Highway Administration; John F. Sullivan, III, Defendants–Appellees,andCape Hatteras Electric Membership Corporation, Intervenor/Defendant–Appellee.

No. 13–2215.

United States Court of Appeals, Fourth Circuit.

Argued: May 13, 2014.

Decided: Aug. 6, 2014.

ARGUED:Julia Furr Youngman, Southern Environmental Law Center, Chapel Hill, North Carolina, for Appellants.Robert Lundman, United States Department of Justice, Washington, D.C.; John Foster Maddrey, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees.ON BRIEF:Nicholas S. Torrey, Southern Environmental Law Center, Chapel Hill, North Carolina; Jason C. Rylander, Defenders of Wildlife, Washington, D.C., for Appellants.Ethan G. Shenkman, Acting Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C.; Thomas G. Walker, United States Attorney, Matthew L. Fesak, Assistant United States Attorney, Environment & Natural Resources Division, Office of the United States Attorney, Raleigh, North Carolina; Roy Cooper, Attorney General, Scott T. Slusser, Special Deputy Attorney General, Thomas D. Henry, Assistant Attorney General, Colin A. Justice, Assistant Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees.

Before DUNCAN and WYNN, Circuit Judges, and J. MICHELLE CHILDS, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion.Judge WYNN wrote the opinion, in which Judge DUNCAN and Judge CHILDS joined.

WYNN, Circuit Judge:

At the heart of this case are the past and future of the Outer Banks, barrier islands along North Carolina's Atlantic coast.For decades, the Herbert C. Bonner Bridge(“Bonner Bridge”) has provided highway access between mainland North Carolina and the Outer Banks's Hatteras Island.But the effects of time threaten the structural integrity of the Bonner Bridge, while large storms and changing coastal conditions threaten the viability of the non-elevated portions of North Carolina Highway 12 (“NC 12”) south of the Bonner Bridge.

The North Carolina Department of Transportation(“NCDOT”) and the Federal Highway Administration (“FHWA”)(collectively, “Defendants”) sought a long-term transportation solution to these problems and settled on a plan that essentially mirrors what currently exists: replacing the Bonner Bridge and maintaining NC 12 on Hatteras Island.

Defenders of Wildlife and the National Wildlife Refuge Association(“Plaintiffs”) responded with this lawsuit.Plaintiffs claim that Defendants violated the National Environmental Policy Act (“NEPA”)andSection 4(f) of the Department of Transportation Act of 1966 by, among other things, committing to the construction of only one segment of the transportation project—namely the replacement bridge—and denying the public the full review of the entire project and its environmental impact, as NEPA requires.Plaintiffs also contend that Defendants violated Section 4(f) by, among other things, improperly rejecting alternatives that would not have used protected wildlife refuge land.

The district court brought Plaintiffs' suit to a halt by granting summary judgment in favor of Defendants.The district court held, in part, that Defendants complied with NEPA and Section4(f) in researching, designing, and selecting their project.

On appeal, we do not decide whether we agree with Defendants' policy choices or project preferences.Rather, we must determine whether Defendants have complied with the law in reaching their decisions.This has been no easy task, given the tortured decisionmaking history of this project, the difficulty of determining exactly what Defendants intend to construct, and the extensive administrative record underlying the district court's decision.Nevertheless, for the reasons that follow, we affirm the district court's determination that Defendants complied with NEPA, reverse the district court's determination that a special exception frees Defendants from complying with Section 4(f), and remand for further proceedings.

I.

A.

Since the early 1990s, Defendants have been developing plans to replace portions of NC 12, a two-lane highway that traverses the Outer Banks.We refer to Defendants' chosen plan—the one currently under review by this Court—simply as “the Project.”The Project involves the fifteen-mile portion of NC 12 running from the southern tip of Bodie Island, across the Oregon Inlet, to the Village of Rodanthe, the northernmost population center on Hatteras Island.The Oregon Inlet is a relatively narrow and shallow channel of water formed in the mid–1800s by severe storms.

Before 1963, when the Bonner Bridge was constructed over the Oregon Inlet, motorists relied on ferries to travel between Hatteras Island and the mainland.The two-lane Bonner Bridge is approximately 2.4 miles long and carries over ten thousand vehicles per day during the area's busy summer tourist season.

After crossing the Oregon Inlet but before reaching Rodanthe, NC 12 passes through thirteen miles of the Pea Island National Wildlife Refuge (“Refuge”) and the Cape Hatteras National Seashore (“Seashore”).These two natural areas are owned and managed by the federal government, and they are major destinations for many of the tourists who visit Hatteras Island.Although the boundaries of the Seashore and the Refuge generally overlap in the Project area, they are two distinct entities.

In 1938, President Roosevelt established the Refuge pursuant to Executive Order 7864, issued under the Migratory Bird Conservation Act.The Order stated that the land was to be reserved “as a refuge and breeding ground for migratory birds and other wildlife” and that “any private lands within the area described shall become a part of the refuge hereby established upon the acquisition of title thereto or lease thereof by the United States[.]”Exec. Order No. 7864,3 Fed.Reg. 734–35(Apr. 12, 1938).During 1937 and 1938, the United States government used condemnation proceedings to acquire the property for the Refuge directly from the previous land owners.The Refuge is managed by the United States Fish and Wildlife Service, a bureau of the Department of the Interior(“DOI”).

In 1937, Congress created the Seashore as a protected environment separate and distinct from the Refuge.Act of Aug. 17, 1937, Pub.L. No. 311,50 Stat. 669.The Seashore contains approximately 100 square miles of “primitive wilderness” on the coast, “set apart ... for the benefit and enjoyment of the people[.]”Id. at 669.The United States government acquired the land for the Seashore through several deeds from the State of North Carolina.Today, the Seashore “is a publicly owned park and recreation area that is owned by the federal government and administered by the [National Park Service].”J.A. 1413.

When the Seashore was created, Congress emphasized the need to protect it from development, stating that “no development of the project [Seashore] or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna” in the area.Act of Aug. 17, 1937, Pub.L. No. 311, § 4,50 Stat. 669, 670.The Seashore remains “72 miles ... of open, virtually unspoiled beach and scenic drive.”J.A. 1413.

During the 1940s, paved roads were built between the villages on Hatteras Island, and in 1952, “a paved road was constructed through Hatteras Island to the village of Hatteras.”J.A. 1910.Exactly when and how the public right-of-way south of the bridge was established is a matter of dispute discussed in detail below.But the record reflects that it was not until 1951 that Congress authorized DOI to grant “a permanent easement for the construction of a public road through ... the Pea Island National Wildlife Refuge” to the State of North Carolina.Act of Oct. 29, 1951, Pub.L. No. 229,65 Stat. 662.And it was not until 1954 that DOI formally deeded the easement to North Carolina.

Unfortunately, both the Bonner Bridge and the road have suffered from the effects of time, ocean overwash, and erosion.NCDOT has deemed the condition of the Bonner Bridge “poor” and given it a “sufficiency rating of two out of 100.”J.A. 1256.The condition of the surface road is no better.In its narrowest places in the Refuge, Hatteras Island is just one-quarter mile wide, and even under normal weather conditions, portions of NC 12 are “threatened by shoreline erosion and overwash.”J.A. 1256.

Despite moving NC 12 as far west as possible,¹ and notwithstanding valiant efforts by its civil engineers and road crews, NCDOT has not been able to ensure the uninterrupted operation of the highway in recent years.In November 2009, for example, Tropical Storm Ida rendered NC 12 impassable just north of Rodanthe.Less than two years later, Hurricane Irene created two breaches that closed NC 12 from August 2011 until October 2011.And in 2012, Hurricane Sandy “tore up the roadbed, leveled the dunes, and damaged the sandbags” north of Rodanthe.DOT struggling with Highway 12 repairs at the S-curves; more ferries added for holiday, Island Free Press, Nov. 16, 2012, http:// island freepress. org/ 2012 Archives/ 11. 16. 2012– DOTStruggling With Highway 12 Repairs At The Scurves More Ferries Added For Holiday. html.(saved as ECF opinion attachment).

In light of the impact of storm events such as these, merely replacing the Bonner Bridge would not achieve the central purpose of the Project, which is to “[p]rovide a new means of access from Bodie Island to Hatteras Island for its residents, businesses, services, and tourists prior to the end of the Bonner Bridge's service life.”J.A. 2486....