Friends of Marolt v. U.S. Dept. of Transp.

• Decision Date: 08 September 2004
• Docket Number: No. 02-1480.,02-1480.
• Citation: 382 F.3d 1088
• Parties: FRIENDS OF MAROLT PARK, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Rodney E. Slater, in his official capacity as Secretary of the U.S. Department of Transportation, Defendants-Appellees. State of Colorado, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.3d 1088

FRIENDS OF MAROLT PARK, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Rodney E. Slater, in his official capacity as Secretary of the U.S. Department of Transportation, Defendants-Appellees State of Colorado, Amicus Curiae.

No. 02-1480.

United States Court of Appeals, Tenth Circuit.

September 8, 2004.

Appeal from the United States District Court for the District of Colorado, Lewis T. Babcock, Chief Judge.

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Lori Potter, Kaplan, Kirsch & Rockwell, LLP, Denver, CO, for Plaintiff-Appellant.

Ellen J. Durkee, Appellate Section, Environment & Natural Resources Division, Department of Justice, Washington, D.C. (Thomas L. Sansonetti, Assistant Attorney General, Washington, D.C., David Ortez, Assistant Chief Counsel, U.S. Department of Transportation, San Francisco, CA, with her on the brief), for Defendants-Appellees.

Ken Salazar, Attorney General, Alan J. Gilbert, Solicitor General, Harry S. Morrow, First Assistant Attorney General, Denver, CO, filed an amicus curiae brief for the State of Colorado.

Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and O'BRIEN, Circuit Judge.

MURPHY, Circuit Judge.

I. INTRODUCTION

In this case, plaintiff-appellant, Friends of Marolt Park, raises challenges under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f and § 4(f) of the Transportation Act, 49 U.S.C. § 303(c), to a Record of Decision ("ROD") issued by defendant-appellee, the United States Department of Transportation. The ROD authorized two alternative construction plans for a transit improvement project near Aspen, Colorado. Under one plan, the "phased approach," highway improvements will be constructed with two additional lanes dedicated to buses. The bus lanes will be removed at a later date if funding becomes available for the construction of a light rail transit system. Under the second plan, the "non-phased approach," the highway improvements and the light rail system will be built at the same time without construction of the bus lanes. Neither of these plans can go forward without further action by local voters.

Friends of Marolt Park ("FMP") argues that the Department of Transportation ("USDOT" or "the Agency") violated § 4(f) by approving the phased approach because immediate construction of the light rail system will have less environmental impact on the Marolt-Thomas Open Space, a publicly owned park. FMP also argues that the requirements of NEPA have not been met because the alternatives authorized by the Record of Decision altered the outcome projected by the Final Environmental Impact Statement without allowing the public an opportunity to comment. The district court denied FMP's requests for relief. We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that the § 4(f) issue is not ripe for decision, we remand to the district court with instructions to vacate the relevant portion of its judgment. We affirm the district court's judgment regarding the NEPA claim.

II. BACKGROUND

State Highway 82 is a two lane highway that serves as the primary means of access to the town of Aspen, Colorado and the ski resorts in the area. Local debate over expanding or improving the highway has continued without resolution since the 1960s. The road is frequently congested and has a high accident rate in comparison with other state roadways. In 1995, the USDOT circulated to the public a draft Environmental Impact Statement ("EIS") for what it refers to as the "Entrance to Aspen" project. That initial draft EIS identified the various public parks which might be affected by the project, including the Marolt-Thomas Open Space Park ("Marolt Park" or "the Park"). Marolt Park is a seventy-four-acre, publicly owned parcel on the western edge of the town of Aspen. The Park serves a variety of recreational interests for local residents including biking, cross-country skiing, and hang gliding. In addition, the Park contains a number of historic buildings. FMP is a nonprofit organization dedicated to the protection and stewardship of the area.

State Highway 82 borders Marolt Park on the north for more than half a mile. One of the central features of the planned modifications to Highway 82 is a realignment of the roadway in order to eliminate an accident-prone section of "S" curves. This realignment requires an easement across land that is currently part of the Park. All of the project alternatives, with the exception of a "no-action" alternative, involve taking some amount of land from Marolt Park.

After the draft EIS was circulated, the Agency issued a supplemental draft EIS, which identified a preferred alternative called the "phased modified direct" alternative. Under this plan, the construction would be completed in two phases. First, four vehicle lanes would be built; these would consist of two lanes of general traffic and two dedicated bus lanes. Later, a light rail track would be installed. This alternative was rejected in the final EIS:

The phased approach to light rail evaluated in the [draft supplemental EIS] is eliminated from further consideration because of a lack of support from the community and the Aspen City Council. The phased approach adds costs and unnecessary disruption to the Section 4(f) resources when compared with the non-phased approach.

The non-phased approach referred to above called for the immediate construction of the light rail system without ever building the bus lanes. The non-phased approach was selected as the preferred alternative in the final EIS.

During the period of public comment on the final EIS, the City of Aspen, Pitkin County, and Snowmass Village jointly passed and submitted as a comment a resolution asking the USDOT to approve the phased approach as a fall-back to the non-phased approach. The elected officials representing the towns and county recognized the non-phased approach as preferable, but expressed their concern that voter approval for a light rail financing plan might not materialize. Although they committed to placing the appropriate ballot questions before the electorate, the local governments sought environmental clearance from the Agency to implement the phased approach "in the event that the Preferred Alternative is determined to be impossible to implement."

In August of 1998, the USDOT issued the Record of Decision. The ROD approves the construction of a two-lane highway with a "[light rail transit] system that, if local support and/or funding are not available, will be developed initially as exclusive bus lanes." The USDOT interprets this decision as approving both the phased and non-phased approaches. Both the phased and non-phased plans, however, require further action by the local electorate. The phased option requires approval by Aspen voters of a right-of-way transfer through Marolt Park for four lanes instead of two. The non-phased option requires voter approval to fund construction of the light rail.¹

FMP brought suit in district court seeking a declaratory judgment that the Agency had violated § 4(f) and NEPA, a remand to the USDOT to resolve the alleged violations, and an injunction preventing any construction during the period of the remand. After concluding that NEPA and § 4(f) had not been violated, the district court denied the request for relief.

III. DISCUSSION

A. Ripeness

Before we reach the merits of appellant's claims we must examine whether the issues raised in this case are ripe for review. Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 243 (10th Cir.1991) (noting that "before a court may review an agency decision, it must evaluate" whether the claim is ripe). While we recognize that the parties have conceded our jurisdiction in this case, this court is compelled to assure itself that it has subject matter jurisdiction. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "As a jurisdictional prerequisite, ripeness may be examined by this court sua sponte." Keyes v. Sch. Dist. No. 1, Denver, Colo., 119 F.3d 1437, 1444 (10th Cir.1997).

This court determines whether an agency decision is ripe for judicial review by "examining the fitness of the issues for judicial decision and the hardship caused to the parties if review is withheld." Park Lake Res. Ltd. Liab. Co. v. United States Dep't of Agric., 197 F.3d 448, 450 (10th Cir.1999).² Ordinarily, whether the issues are fit for review depends on whether the plaintiffs challenge a final agency action. Id. Even where an agency action is considered final, however, a claim may not be ripe if there is no direct, immediate effect on plaintiffs. See Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 164-65, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967).

1. Section 4(f) Claim

FMP's § 4(f) claim rests on the assertion that the approval of the phased approach will cause the construction of a highway design which does not minimize harm to Marolt Park as required by the Transportation Act. Both the USDOT and FMP, however, acknowledge that before the project can go forward further action by local voters is required. The ROD indicates that before the phased project can be built, Aspen voters must approve a right-of-way transfer for the construction of two highway lanes, two bus lanes, and the light rail. Likewise, the non-phased project cannot go forward without voter approval of a funding plan for the light rail. Thus, any impact on FMP from the USDOT's decision "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quotations omitted).

With such vital contingencies remaining to be resolved, FMP's § 4(f) claim is not ripe for adjudication. Any conflict between FMP's goals and the ROD is purely hypothetical at this point. The voters may approve the funding scheme needed for the light rail, in which case the...