Northwest Bypass v. U.S. Army Corps of Engineers

• Decision Date: 05 January 2007
• Docket Number: Civil No. 06-CV-00258-JAW.
• Citation: 470 F.Supp.2d 30
• Parties: NORTHWEST BYPASS GROUP, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — District of New Hampshire

470 F.Supp.2d 30

NORTHWEST BYPASS GROUP, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.

Civil No. 06-CV-00258-JAW.

United States District Court, D. New Hampshire.

January 5, 2007.

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Gordon R. Blakeney, Jr., Concord, NH, for Plaintiffs.

Daniel R. Dertke, U.S. Dept of Justice— Environmental Defense (23986), Samantha Klein, U.S. Dept of Justice—Environmental & Natural Res. (663), Environmental & Natural Resources Division, Washington, DC, John P. Almeida, U.S. Army Corps of Engineers, New England District, Concord, MA, E. Tupper Kinder, Nelson Kinder Mosseau & Saturley PC, Bruce W. Felmly, McLane Graf Raulerson & Middleton, Manchester, NH, Claudia C. Damon, Gregory H. Smith, McLane Graf Raulerson & Middleton, Concord, NH, for Defendants.

ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

WOODCOCK, District Judge.

I. Introduction

Northwest Bypass Group,¹ Morton and Carolyn Tuttle,² and Leslie Ludtke,³ allege that the United States Army Corps of Engineers (Corps) violated the Clean Water Act (CWA), the National. Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA), when it issued a permit pursuant to Section 404 of the CWA, allowing the City of Concord to fill 3.5 acres of wetlands to build a 4,300-foot connector road.⁴ In a comprehensive 19-count complaint spanning 140 pages, the Plaintiffs allege that the Corps committed numerous statutory violations. See generally Compl. (Docket # 1); Pls.' Memo. of Law in Support of Motion for TRO and Prelim. Inj. at 17-19 (Docket # 2) (Pls.' Mot.).

II. Procedural History

On September 15, 2006, this Court denied Plaintiffs' motion for temporary restraining order. See Order (Docket # 46). The City began preparation of the roadway for construction of Phase II of the Northwest Bypass project. Plaintiffs moved for reconsideration on September 24, 2006 (Docket # 50), and filed an addendum, to that motion on September 26, 2006 (Docket # 54).⁵ The several defendants opposed the motion for reconsideration.⁶ Plaintiffs filed a motion for leave to file a reply (Docket # 57), which this Court granted on October 31, 2006. See Order Granting Motion for Leave to File a Reply (Docket # 67).

III. The Corps Decision

In November, 2000, the City filed an application with the New Hampshire Department of Environmental Services (NHDES) for a wetland and water quality permit, beginning the complex approval process for Phase II of the project.⁷ The City also sought the requisite CWA section 404 permit from the Corps to fill wetlands in the path of the proposed Phase II. AR 1:137. On December 12, 2000, the Corps issued a public notice, soliciting comment on whether to approve the permit with respect to Phase II. Id.; AR 1:38. The NHDES held two public hearings, which the Corps's regulatory project manager attended. Id. In addition, in response to the 2000 public notice, the Corps received and considered numerous public comments. AR 1:39-41.

On January 10, 2006,⁸ the Corps completed an environmental assessment (EA) of the proposed project to determine whether an environmental impact statement (EIS) was necessary. See AR 1:32. The EA identified the basic purpose of the project: "to relieve traffic congestion and to allow for the safe and efficient flow of traffic in this quadrant of the city. Improved pedestrian safety is an inherent part of the basic project purpose." Next, the Corps considered and rejected three alternatives. AR 1:34. The Corps determined that, "Wrom our environmental assessment of the project we find that our decision to permit fill for this project is not a major Federal Action significantly affecting the human environment. Therefore, an EIS is not required and our Environmental Assessment will suffice for the purposes of compliance with NEPA." AR 1:41. According to the EA, the Corps considered "all factors relevant to this proposal including cumulative effects" and concluded that "this project is not contrary to the public interest and that a Department of the Army permit should be issued." Id. Consistent with their determined opposition to the project, the Plaintiffs have waged a full scale assault in this Court against the Corps's approval.⁹

IV. Standard of Review

A. Preliminary Injunction Standard

This Court analyzes a request for a preliminary injunction through application of the following four well-established factors:

(1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and, (4) the effect (if any) of the court's ruling on the public interest.

Esso Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.2006) (quoting Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 11 (1st Cir.2004)); see also Puerto Rico Conservation Foundation v. Larson, 797 F.Supp. 1066, 1069 (D.P.R.1992). The party seeking relief bears the burden of demonstrating that these factors "weigh in its favor." Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir.2003). This burden is a heavy one: "Because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003) (reversing the denial of a preliminary injunction in a CWA permitting case); W. Ala. Quality of Life Coal. v. United States FHA, 302 F.Supp.2d 672, 679 (D.Tex.2004) (a grant of the preliminary injunctive remedy "must be supported by specific findings of the court.").

B. Arbitrary and Capricious Standard

Because this is a review of an action by a federal agency—the Army Corps of Engineers—the standard of review is supplied by the Administrative Procedures Act (APA). See 5 U.S.C. § 702. Under the APA, a district court will uphold an agency's decision unless it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." 5 U.S.C. § 706(2)(A);¹⁰ see also Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) ("The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious."). The First Circuit explained that the task of a court reviewing agency action under the APA's "arbitrary and capricious" standard is "to determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1284 (1st Cir.1996); see also Associated Fisheries of Maine v. Daley, 127 F.3d 104, 109 (1st Cir.1997) (explaining that an agency action is "arbitrary and capricious if the agency lacks a rational basis for adopting it—for example, if the agency relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise."); see also Penobscot Air Servs. v. FAA, 164 F.3d 713, 719 (1st Cir.1999) ("The task of a court reviewing agency action under the APA's `arbitrary and capricious' standard is to determine whether the agency has examined the pertinent evidence, considered the relevant factors, and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.").

Conversely, an agency decision is not arbitrary or capricious if "the agency decision was based on a consideration of the relevant factors and there has not been `a clear error of, judgment'. . " Dubois, 102 F.3d at 1285 (quoting. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). "The requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its result and respond to relevant and significant public comments. However, neither requirement is particularly demanding." Penobscot Air Servs., 164 F.3d at 719 n. 3 (internal citations and quotation marks omitted).

The Court's review under this standard is "highly deferential," in that the agency action is presumed valid. Associated Fisheries, 127 F.3d at 109. In other words, this Court "is not empowered to substitute its judgment for that of the agency." Overton Park, 401 U.S. at 416, 91 S.Ct. 814; see also 33 Charles A. Wright & Charles H. Koch, Jr., Federal Practice & Procedure § 8334 ("Arbitrary and capricious review communicates the least judicial role, short of unreviewability, in the word formula system."). Notwithstanding the deferential standard of review, "it is not a rubber stamp." Dubois, 102 F.3d at 1285. Rather, the Court "must undertake a `thorough, probing, indepth review' and a `searching and careful' inquiry into the record." Id. (quoting Overton Park, 401 U.S. at 415-16, 91 S.Ct. 814). In carrying out its task under the APA, the scope of the Court's review will include the whole administrative record. See 5 U.S.C. § 706; Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (district court review "is to be based on the full administrative record that was before the [agency head] at the time he made his decision"); Cousins v. Sec'y of United States Dep't of Transp., 880 F.2d 603, 610 (1 st Cir.1989).

C. Substantial Evidence: 5 U.S.C. § 706(2)(E)

Plaintiffs suggest this case calls for the higher "substantial evidence" standard of review than the typical APA case. See Pls.' Mot. to Reconsider at 5. They argue that a "record-based analysis ... fail[s] the rigorous standard, in judicial scrutiny of regulatory decisions, that a...