Little Traverse Lake Prop. Owners Ass'n v. Nat'l Park Serv.

• Decision Date: 23 February 2018
• Docket Number: No. 17-1064,17-1064
• Citation: 883 F.3d 644
• Parties: LITTLE TRAVERSE LAKE PROPERTY OWNERS ASSOCIATION; Douglas Jones; L. Gene Morse; Linda Morse; Mary Ann Shutz; Marcia Skjaerlund, Plaintiffs–Appellants, v. NATIONAL PARK SERVICE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

883 F.3d 644

LITTLE TRAVERSE LAKE PROPERTY OWNERS ASSOCIATION; Douglas Jones; L. Gene Morse; Linda Morse; Mary Ann Shutz; Marcia Skjaerlund, Plaintiffs–Appellants,

v.NATIONAL PARK SERVICE, Defendant–Appellee.

No. 17-1064

United States Court of Appeals, Sixth Circuit.

Argued: October 13, 2017

Decided and Filed: February 23, 2018

ARGUED: Graham K. Crabtree, FRASER TREBILCOCK DAVIS & DUNLAP, P.C., Lansing, Michigan, for Appellants. Kevin W. McArdle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Graham K. Crabtree, Thaddeus E. Morgan, FRASER TREBILCOCK DAVIS & DUNLAP, P.C., Lansing, Michigan, for Appellants. Kevin W. McArdle, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before: KEITH, ROGERS, and McKEAGUE, Circuit Judges.

ROGERS, Circuit Judge.

This case presents the question of what citizens must do during the administrative planning stage of a federal agency action in order to preserve a later challenge to the agency’s final decision under the National Environmental Policy Act ("NEPA"). In 2008, the National Park Service proposed a plan to build a scenic trailway through the Sleeping Bear Dunes National Lakeshore in Leelanau County, Michigan. One of the alternative routes for the trailway ran along Traverse Lake Road, but residents along that road opposed sending Lakeshore visitors down their residential street, so they submitted objections to the proposed plan during the public comment period. The Park Service attempted to address the objections to the 2008 proposal, and in 2009, the Park Service issued a revised proposal that made significant changes to the portion of the trail along Traverse Lake Road. No one submitted objections to the revised plan, and the Park Service approved the route along Traverse Lake Road after it made a finding of no significant impact.

Almost six years later, the Little Traverse Lake Property Owners Association, along with individual residents on Traverse Lake Road (collectively "Plaintiffs") filed the current action, contending that the 2009 plan violates NEPA and its implementing regulations. In support of their claims, Plaintiffs sought to supplement the administrative record with additional pictures, maps, and other documents. However, the district court correctly dismissed most of Plaintiffs’ claims as forfeited because Plaintiffs failed to participate in the Park Service’s planning process in a manner that would alert the Park Service to their objections to the 2009 plan, and therefore, Plaintiffs did not allow the Park Service the opportunity to give the issues meaningful consideration before issuing its final decision. See Dep’t of Transp. v. Pub. Citizen , 541 U.S. 752, 764–65, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). The district court also correctly held that Plaintiffs’ lone preserved claim is without merit, and that Plaintiffs have failed to show that there are exceptional circumstances requiring supplementation of the administrative record.

I.

The Sleeping Bear Heritage Trail is a hard-surfaced, non-motorized, multi-use trail that will span twenty-seven miles from the northern end of the National Lakeshore at County Road 651 to the Leelanau–Benzie county line south of Empire, Michigan. The Trail currently runs almost twenty-two miles from Empire north to Bohemian Road (County Road 669), just west of Traverse Lake Road. The Trail is part of the Lakeshore General Management Plan, and was developed by the Leelanau Scenic Heritage Route Committee (the "Committee"), which was comprised of representatives from the Park Service, local municipalities, the Michigan Department of Transportation, the Leelanau Conservancy, the Leelanau County Road Commission, and other interested organizations and citizens.

In January 2007, because the Trail project’s development must comply with NEPA, 42 U.S.C. §§ 4321 et seq. , the Committee solicited proposals for a pre-engineering study and draft environmental assessment. NEPA "sets forth essentially procedural requirements to assess environmental impacts of major federal actions." Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta , 375 F.3d 412, 414 (6th Cir. 2004) ( Pellissippi Parkway ). In general, NEPA requires agencies to prepare an environmental impact statement, which provides an explanation of the environmental impacts of, and possible alternatives for, major federal actions that significantly affect the quality of the human environment. See 42 U.S.C. § 4332(C). However, if an agency is uncertain whether a project will significantly affect the quality of the human environment, it may first prepare an environmental assessment, which is a "concise public document" that briefly discusses the environmental impacts of, and alternatives to, a proposed action. 40 C.F.R. § 1508.9. "[T]he environmental assessment functions as a screening device ... [that] allows agencies with limited resources to focus on truly important federal actions," and it "has been described as a rough-cut, low-budget environmental impact statement." Friends of Fiery Gizzard v. Farmers Home Admin. , 61 F.3d 501, 504 (6th Cir. 1995) (citations and internal quotation marks omitted).

On October 1, 2008, the Park Service released a proposed plan and environmental assessment (the "2008 Trail Plan"), which stated that the plan’s "purpose and need" was to "assist in the creation of a non-motorized trailway that will provide a continuous scenic pathway" within Leelanau County, beginning at the intersection of M–22 and Manning Road and ending at Good Harbor Bay, County Road 651. The 2008 Trail Plan divided the twenty-seven mile path into nine distinct segments in order to analyze alternatives and environmental impacts with more specificity, and in each segment the plan considered three alternatives—Alternative A, Alternative B, and No Action.

The easternmost segment, Segment 9, encompasses the Little Traverse Lake area at issue in this suit. Segment 9 runs from the intersection of Bohemian Road and Traverse Lake Road, east to the swimming beach and facilities located at the northern end of County Road 651, near the northern boundary of the Lakeshore, and provides access to historic Bufka Farm. The 2008 Trail Plan routed Alternative A for Segment 9 south of Little Traverse Lake along Highway M–22, but for Alternative B, the "preferred alternative," the 2008 Trail Plan proposed a ten-foot off-road asphalt section on the north side of M–22 up to Traverse Lake Road that would then turn north, using Traverse Lake Road for approximately three miles before emerging back on the M–22 right-of-way.

Both the east and west ends of Traverse Lake Road intersect with M–22, and the road extends approximately 2.7 miles between those intersections. Traverse Lake Road is approximately twenty-two feet wide, with unpaved shoulders, and mature trees are present on both sides of the road. The south side of Traverse Lake Road is bounded by more than seventy private parcels. Wetland areas are located near the east and west ends of Little Traverse Lake, and sand dunes, some steep and more than fifty feet in height, are present along the eastern end of the road.

The 2008 Trail Plan was made available for public review and comment for thirty days, and the Park Service held an open house meeting on October 16, 2008. The Park Service received approximately fifty comments during the comment period. Among the comments, residents living along Traverse Lake Road objected to the expansion of the roadway to accommodate the Trail, asserting that it would "turn a quiet residential street into a highway with paved shoulders." Opponents of Alternative B also expressed concerns that the Alternative would present hazards for walkers, joggers, and bikers due to increased traffic. Opponents also voiced concerns about Alternative B’s potential impact on wetlands located near both ends of Little Traverse Lake and dunes at the east end of Traverse Lake Road.

The president of the Little Traverse Lake Property Owners Association "strongly oppose[d] any modification of Traverse Lake Road to provide for bicycle lanes," asserting that "[c]onstruction of a bicycle lane on the north side of Traverse Lake Road" would interfere with "critical dunes and require the removal of many, many mature trees" and it would be "both costly and environmentally dreadful!" The Property Owners Association also stated that a trail on the south side of the road would cross more than seventy driveways and interfere with utilities, mailboxes, and landscaping, contrary to the Park Service’s assessment that the Trail would minimally impact adjacent landowners. Finally, the Property Owners Association suggested that the Trail be rerouted to terminate at the north end of Bohemian Road at Lake Michigan.

After considering the public comments to the 2008 Trail Plan, the Park Service issued a revised plan and environmental assessment in March 2009 (the "2009 Trail Plan"). The revised plan maintained the initial proposal for Alternative A, but modified Alternative B for segments 1, 2, and 9. The revised Alternative B for Segment 9 is approximately 4.8 miles long, 2.3 miles of which runs along Traverse Lake Road. It is described as:

[A] 10’ off-road asphalt section on the north side of M–22 up to Traverse Lake Road. The Trailway turns north on the west side of Traverse Lake Road onto an off-road boardwalk within the county road right of way. It continues as a separate 10’ off road asphalt path on the north side of Traverse Lake Road either within the county road right-of-way or on Lakeshore property south of proposed wilderness. The Trailway would then follow an old two track road that runs from the northeast end of Little Traverse Lake becoming a crushed limestone path behind the Bufka Farmstead . [Emphasis added.]

Thus, while the 2009 Trail Plan retained a route along Traverse Lake Road, it proposed three significant changes to address the concerns identified in the earlier comments. First, the Park...