Northern Crawfish v. Fed. Highway Admin.

• Decision Date: 01 July 1994
• Docket Number: No. 93-4028-SAC.,93-4028-SAC.
• Citation: 858 F. Supp. 1503
• Parties: NORTHERN CRAWFISH FROG (RANA AREOLATA CIRCULOSA), The Federation To Rescue Our Greenspace, an Unincorporated Association and Clark H. Coan, Plaintiffs, v. The FEDERAL HIGHWAY ADMINISTRATION, Defendant.
• Court: U.S. District Court — District of Kansas

858 F. Supp. 1503

NORTHERN CRAWFISH FROG (RANA AREOLATA CIRCULOSA),¹ The Federation To Rescue Our Greenspace, an Unincorporated Association and Clark H. Coan, Plaintiffs, v. The FEDERAL HIGHWAY ADMINISTRATION, Defendant.

No. 93-4028-SAC.

United States District Court, D. Kansas.

July 1, 1994.

Donald G. Strole, Sally G. Kelsey, Law Office of Donald G. Strole, Lawrence, KS, Robert V. Eye, Irigonegaray & Associates, Topeka, KS, Dennis J. Highberger, Lawrence, KS, for plaintiffs.

Helen Mountford, Federal Highway Admin., Kansas City, MO, Jackie A. Rapstine, Office of U.S. Atty., Topeka, KS, Martha R. Steincamp, U.S. E.P.A., Kansas City, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

On February 8, 1993, the plaintiffs commenced this action for declaratory and injunctive relief, challenging the decision of the defendant, the Federal Highway Administration (FHWA),² to participate in the construction of the proposed South Lawrence Traffic-way (SLT)³ in Douglas County, Kansas.⁴ The plaintiffs contend that the route selected for the SLT involves the taking of public parkland without a determination that the parkland is not significant or that there is no reasonable and prudent alternative to such taking. The plaintiffs also challenge the decision by the defendant to approve a Final Environmental Impact Statement (FEIS) that they contend does not consider all of the reasonable alternatives to the project and is otherwise defective.

The plaintiffs' action arises under and alleges violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., the Department of Transportation Act of 1966, 49 U.S.C. § 301, et seq., the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, et seq., the Clean Water Act, 33 U.S.C. § 1251, et seq., Executive Order 11990, the Administrative Procedures Act, 5 U.S.C. § 553, et seq., and the regulations issued pursuant to those statutes.

In Counts I and II of their complaint, the plaintiffs challenge the FHWA's determination that 23 U.S.C. § 138 and 49 U.S.C. § 303(c) and its implementing regulations are not applicable to the newly created Lawrence Prairie Park. Counts III through VIII challenge the adequacy of the Final Environmental Impact Statement and the Record of Decision issued by the FHWA for the SLT. Count IX challenges the FHWA's determination that there was no conflict of interest in violation of 40 C.F.R. § 1506.5(c) in the preparation of the FEIS.

In short, the plaintiffs seek an order halting any and all acquisition of right-of-way and all construction activity related to the proposed SLT. The plaintiffs request that such an injunctive order remain in effect until the defendant adopts a route for the proposed SLT that does not require the taking of protected parkland and until the defendant prepares and approves a supplementary Environmental Impact Statement (EIS) which examines the effect of the proposed route and all other reasonable alternatives on protected park land and protected wetlands.

This case comes before the court upon the FHWA's motion for summary judgment (Dk. 41) and upon the plaintiffs' cross-motion for summary judgment (Dk. 43). Each side has responded to their opposition's motion, and each side has filed a reply brief.

Decocted to its simplest form, it is the FHWA's position that the FEIS evaluating the need for and the impact of the SLT was made in compliance with all relevant rules and regulations and that the FEIS is amply supported by the materials contained in the voluminous Administrative Record. The FHWA contends that its approval of the FEIS was neither arbitrary nor capricious. In stark contrast, the plaintiffs contend that the FHWA's approval of the FEIS is not only contrary to the letter and spirit of the relevant laws and regulations, but also that the FEIS approved by the FHWA is based upon spurious assumptions and data wholly defying common sense. The plaintiffs' position is perhaps summarized by this quote from their reply brief:

To summarize the argument of the plaintiffs, albeit somewhat colloquially, there are holes in this FEIS wide enough to drive a truck through. The plaintiffs urge the Court to find, on the other hand, that these holes are too wide to build a highway through.

Plaintiffs' reply brief at 22-23.

Overview of Relevant Statutes and Regulations

In order to better understand the respective positions of the parties, the court will provide a brief overview of the relevant statutes and regulations implicated in this case:

National Environmental Policy Act (NEPA)

In the National Environmental Policy Act of 1969, Congress specifically "recognized the profound impact of man's activity on the interrelations of all components of the natural environment," and resolved "to recreate and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 U.S.C. § 4331. "These sweeping goals have inspired some commentators to call NEPA an environmentalist Magna Carta." Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193 (D.C.Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991).

"It is `well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.'" Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir.1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989)). "NEPA commands agencies to imbue their decisionmaking, through the use of certain procedures, with our country's commitment to environmental salubrity." Citizens Against Burlington, 938 F.2d at 193-194.

The federal court's review of agencies' decisions is circumscribed by the highly deferential abuse of discretion standard of review:

Just as NEPA is not a green Magna Carta, federal judges are not the barons at Runnymede. Because the statute directs agencies only to look hard at the environmental effects of their decisions, and not to take one type of action or another, federal judges correspondingly enforce the statute by ensuring that agencies comply with NEPA's procedures, and not by trying to coax agency decisionmakers to reach certain results. See Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). As the Supreme Court has warned, "once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot `"interject itself within the area of discretion of the executive as to the choice of the action to be taken."'" Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980) (per curiam) (citation omitted); see Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976) ("Neither NEPA nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.").

Citizens Against Burlington, 938 F.2d at 194.

"Under NEPA, `major Federal actions significantly affecting the quality of the human environment' must be preceded by an environmental impact statement or EIS. 42 U.S.C. 4332(2)(C)." Holy Cross, 960 F.2d at 1521 (citations omitted).

The EIS requirement serves two important functions:

It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.

Robertson, 490 U.S. at 349, 109 S.Ct. at 1845. NEPA specifies five specific issues which must be addressed in the EIS:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. 4332(2)(C). Thus, "through a set of `action-forcing' procedures" NEPA requires agencies to take a "hard look" at the environmental consequences of proposed actions. Robertson, 490 U.S. at 350 109 S.Ct. at 1846.

Holy Cross, 960 F.2d at 1521.

Executive Order 11990

In 1977, President Carter issued executive Order 11990 pursuant to and in furtherance of NEPA. Harris v. United States, 19 F.3d 1090, 1093 (5th Cir.1994). This executive order has the force and effect of a statute enacted by Congress. Id. Executive Order 11990 requires, inter alia, that all federal agencies shall take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities for (1) acquiring, managing, and disposing of Federal lands and facilities; and (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use, including but not limited to water and related land resources planning, regulating, and licensing activities.

Exec. Order No. 11990, § 1(a), 42 Fed.Reg. 26,961 (1977), reprinted as amended in 42 U.S.C. § 4321 note (1988).

Clean Water Act (CWA)

"In 1972 Congress enacted the Clean Water Act `to restore and maintain the chemical, physical and biological integrity of the Nation's waters.' 33 U.S.C. § 1251(a)." Sierra Club v. Lujan, 972 F.2d 312, 313 (10th...